ML20028G387
| ML20028G387 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 02/08/1983 |
| From: | Frye J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8302090237 | |
| Download: ML20028G387 (4) | |
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DOLKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ffiISSION
'83 FEB -8 P2:22 AT0t1IC SAFETY AND LICENSING BOARD Before Administrative Judges:
dam John H Frye, III, Chairman
' Q'"(pg f M G
Dr. Emmeth A. Luebke Dr. Oscar H. Paris SERVEDhh8hh In the Matter of Docket No. 50-142 OL
)
(P sdR al f
THE REGENTS OF THE UNIVERSITY 0F CALIFORNIA
)
(UCLA Research Reactor)
)
February 8, 1983 MEMORANDUM AND ORDER (Ruling on NRC Staff's Motion for Clarification)
On February 4,1983, NRC Staff filed a motion in this proceeding in which it requests "... the Board to clarify... the purpose of the forthcoming prehearing conference in relation to the legal require-ments for summary disposition in 10 CFR S 2.749, and to specify the questions and issues to be discussed by the parties." Staff's difficulty outlined in its Motion lies in the fact that CBG, in responding to Staff's c ad UCLA's Motions for summary disposition, has not filed "... 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 CFR 5 2.749(c).) Staff takes the position that the absence of such a statement dictates the conclusion that CBG's response is inadequate.
In its response, CBG, in compliance with the Board's directions, indicated which of the facts listed in support of Staff's (and UCLA's) 8302090237 830200 PDR ADOCK 05000142 O
PDR tsom
- motion it disputed and furnished references to materials it maintained established a dispute. The references furnished consist of the declara-tions of indiviiuals and other documents. The material is voluminous.
After touching on the inadequacy of CBG's response, Staff points up the difficulty attendant on arguing the " relevancy, materiality, or legal sufficiency" of this voluminous material. Staff believes that the existence of a list of facts which CBG maintains are disputed would aid this process.
A summary judgment is neither a method of avoiding the necessity of proving one's case nor a clever procedural gambit whereby a claimant can shift to his adversary his burden of proof on one or more issues.
United States v. Dibble, 429 F.2d 598, 601 (9th Cir.1970).
The Scard has reviewed that material cited by Staff and UCLA in support of their lists of facts which they maintain are not disputed and the materials cited by CBG to establish a dispute. As indicated in our Memorandum and Order of even date, we find that genuine issues exist for hearing with regard to whether the UCLA Argonaut University Training Reactor is inherently safe.
In so finding, we have elected to hold in abeyance contentions raising other matters.
As that tiemorandum and Order indicates, Staff and UCLA have failed in their burden to show that the factual basis for their position is not subject to dispute.
Hence as a matter of law they are not entitled to summary disposition.
As noted by an appeal board in Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1) ALAB-695,16 flRC (1982), summary disposition "... is a procedural device to screen
. contentions that do..ot involve real factual controversies" (slip 00.
at 21).
In that case, the movant had "... d'emonstrated that there were no genuine issues of material fact to be heard..., that the affiant was fully competent to testify..., and that movant was entitled to a decision as a matter of law" (slip op, at 23).
In this case, movants have failed to demonstrate that no genuine issues exist to be heard and thus have failed to meet their burden.
Cleveland Electric Illuminating Company, et al.
(Perry Nuclear Power Plants, Units 1 and 2) ALAB-443, 6 NRC 741, 752-4 (1977).
Had Staff and UCLA been successful in demonstrating that no dispute existed with respect to their statements of facts, it would indeed be incumbent on CSG to establish that other relevant facts are disputed.
In this connection, the listing sought by Staff would serve a useful purpose. However, in the instant circumstances, such a listing of facts by CBG would add nothing. The lengthy and complex argument which Staff is concerned about will take place at the ev,identiary hearing.
Staff's request for guidance with respect to the issues which the Board wishes addressed at the prehearing conference is well taken.
It had been our intention to furnish an agenda contemporaneously with the Memorandum and Order denying UCLA's and Staff's motions. We therefore do so in this document.
AGENDA 1.
Results of the parties' efforts to simplify and or settle the issues.
u
O O 2.
Parties' estimates of the amount of time necessary for hearing.
3.
Scheduling matters:
a) witness availability; and b) time necessary for each witness.
4.
Hearing procedures:
a) possibility of taking testimony on any one topic jointly from all parties' experts (cf. Statement of Policy on Conduct of Licensing Proceedings, 5 III I., 46 FR 28533, May 27, 1981); and b) reliance on undisputed facts.
5.
Any other matters the Board and the parties desire to discuss.
FOR THE ATOMIC SAFETY AND LICENSING BOARD h~%.
John Hfrye,\\ III, Chairman-(DFITSSIgjATIEJUDGE Bethesda, Maryland February 3,1933
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