ML20031F287
| ML20031F287 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 10/08/1981 |
| From: | Copeland J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO. |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| NUDOCS 8110190487 | |
| Download: ML20031F287 (8) | |
Text
O I'. ELATED CORRESIMDENCE o
BAKER & BOTTS ON E SHE LL PL AZA HOUSTON. T EXAS 77oo2 WaSMINGTON OFFICE TELE PHON E 17i3) 229 -
ivoi aCNNSYLVANiA AVE,N W C4 WOSMINGTON. O C 20006 g,
VELEPHON E (202) 4 57. 5500
[
Q, (202) 457 553i wASnlN0foN, D. C.
N 3
q h '?g,b. \\
4 October 8,,1981 d
~
\\\\
Ift\\ O Re:
Allens Creek Nuclear Generating Station, Unit No.
1, Dkt. No. 50-466 To All Parties:
Enclosed herewith is a copy of a portion of the tran-script of October 7, 1981, wherein the Bcard made an oral ruling on Applicant's motion for reconsideration of the Board's Second Order Ruling on Motions for Summary Disposition.
Very t,ruly yours, 1
L{ hbl J. G r e g o r y ((C o p e l a n d 0(
Attorney for Houston Lighting & Power Company l
JGC:50 Enclosure l
g i
"KOV[ ifs.
s OCT1 g
'r--
~' % u I
v Y,% \\
s i
l 9 5
)
1 l
0110190407 811008 8
l PDR ADOCK 05000466 l
>Q PDR j
I N
ggLggr CORhESPONDENCE 3
\\ W I 'l %
/
')
f UNITED STATES OF AMERICA k
?/
va. 3k.{s m
vuh 2
BEFORE THE ti:
ocT.13t8E' ?
3 NUCLEAR REGULATORY COMMISSION O
c{$8b884 ks#
4 In the Matter of:
)
g 5
)
2 HOUSTON LIGHTING & POWER
)
6 COMPANY
) Docket No. 50-466 CP g
)
7 Allens Creek Nuclear Generating
)
g Station, Unit 1
)
8 8
n dd 9
Sun Belt Room l
Eleventh Floor
'j 10 Ramada Inn 7787 Katy Freeway II Houston, Texas 3
f 12 Wednesday, c
October 7, 1981
]y 13 PURSUANT TO ADJOURNMENT, the above-entitled g
14 ratter came on for further hearing at 10:00 a.m.
E 15 x
APPEARANCES:
j 16 d
Board Members.
g 17
~
w=
SHELDON J.
- WOLFE, Esq., Chairman h
IO Administrative Judge h
Atomic Safety and Licensing Board Panel I9 g
U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 20 GUSTAVE A.
LINENBERGER 2I Administrativa Judge Atomic Safety and Licensing Board Panel 22 U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 DR.
E.
LEONARD CHEATUM 4
Administrative Judge Route 3,
Box 350A l
25 Watkinsville, Georgia 30677 i
l ALDERSON REPORTING COMPANY, INC.
a-18080 1-4 JUDGE WOLFE:
The Order reads as follows:
2 ORDER 3
(D,enying Applicant's rio ti on for Reconsideration) 4 On September 18, 1981, Applicant filed a Motion o
5 f r Reconsideration.
With respect to certain contentions C
e l
6 as to which the Board denied Motions for Summary Disposi-tion 7
4 in our Order of 9eptember 1, 1931, Applicant re-8 quests that, in accord with Federal Rule of Civil Pro-d a
9 cedure 56(d), the Board should ascertain, if practicable, i
h 10 what material facts exist without substantial controversy, Z
E 11 and should rule that these material facts are deemed d
12 established and are not subject to litigation in this z-
-c i
d 13 proceeding.
D h
E 14 Mr. Doherty filed an opposing response on i
15 September 25th.
On October 5th, Staff filed a response l
s W=
16 in support of Applicant's motion.
)
E d
17 Where a provision of the NRC rules is similar d
E 18 or analogous to one of the Federal Rules, judicial inter-
~
l
{
19 pretation of that Federal Rule can serve as guidance for
'.j 20 interpreting that particular NRC rule.
Detroit Edison 1
21 Company, et al.
(Enrico Fermi Atomic Pcwer Plant, 22 Unit 2), LBP-78-37, 8 NRC 575, 581 (1978).
I s
23 i
However, where as here, the provision of
!i 24 F.R.C.P.
56 (d) is not included in the provisions of 25 i
)i ALDERSON REPORTING COMPANY, INC.
.. m "N
.i 180P1
.-5 g,Section 2.749, the only conclusion to be drawn is that 2
the Commission did not intend for the unselected Federal 3
rul 3 to control its proceedings.
General Electric Company 4
(Vallecitos Nuclear Ceater, General Electric Test Reactor),
e 5
LBP-78-33, 8 ARC 461, 466 (1978)1 2
N h
6 Thus, Applicant's instant motion is without R
_g 7
merit because Rule 2.749 has no provision even remotely a
8 8
similar to the provision in P.R.C.P.
56(d).
O d
9 Accordingly, the Board denies Applicant's io 10 Motion for Reconsideration.
?_.
- g 11 In any event, the Board does not understand j
12 and was surprised by the filing of the Motion for Recon-ci" y
13 sideration.
In the first place, Applicant urges that, m
14 with respect to various contentions, we should have found
_b 2
15 that certain material facts were uncontroverted because d
g' 16 no opposing responses to the motions for summary dispositio s e
U 17 had been filed, or because the opposing responses were S
18 deficient.
P" 19 g
However, in Adickes v.
Kress and Company, n
20 398 US 144 (1970), the Supreme Court held that it is the 2I I
p a rty seeking summary judgment, not the party opposing 22 it, which has the burden of showing the absence of a i
23 genuine issue as to any material fact, and that, where-24 the moving party's evidentiary matter in support of the l
25 i motion does not establish the absence Of a genuine ~ issue, ALDERSON REPORTING COMPANY, INC.
6 NOIR 2 A
1 summary judgment must be denied even if no opposing evi-2 dentiary matter is present.
3 Implicitly, the Supreme Court held that, if the 1 4
movant does not carry the burden of shoaing the absence e
5 of a genuine issue of material fact, a summary judgment Aa 6
must be denied even if the opposing response was R
7 deficient.
X 8
8 second, as our Second order of September 1,
O d
9 1981 reflects, in denying the Motions for Summary Dis-
,zog 10 position of TexPirg Additional Contention 6,
TexPirg a
- =
II Additional Contention 40, Doherty Contention 15.and B
N 12 Doherty Contention 38-B, the movants had not carried
~
j 13 their burden cf establishing the absence of a genuine issue m
m 5
14 as to any material fact be :ause the Board questioned
{
15 the expertise of their affiants.
It is inconceivable z
16 g
to the Board how Applicant and Staff could argue that the w
h 17 Board should find, based on the' statements of unqualified
~
IO affiants, that there were some uncontroverted material P
19 8
f a c,t s.
e 20 Again, with respect to Doherty Contention 5,
21 i
Applicant had not carried its burden because, among other 22 reasons, the affidavits were conclusional and final results 23 of vibrational effects on the hydraulic control units had' 24 not been arrived at and, thus, we could not find that 25 there were some genuine issues of material fact that i
i ALDERSON REPORTING COMPANY, INC.
~
wiru3 I
3 e
l
.j woro subotantially uncontroverted.
1-7 2
Third, with respect to Doherty Contention 3
43, we n,ote that although Applicant listed this contention i
[
4 in the introduction to its Motion for Reconsideration,
,5 i
e e
5 Applicant failed to discuss it 'thereafter, and Ea 6
specifically failed to explain the reasons why we should e
Rg 7
grant the Motion for Reconsideration.
Further, with N
8 regard to that contention, we note that Applicant should dd 9
have no complaint since we partially granted Applicant's iog 10 Motion for Summary Disposition with respect to two
- z
[:
E 11 Portions of the Doherty Contentior. 43 end requested that
<k j
12 Applicant present evidence only with respect to that E
r j
13 specific residual matter, and Applicant was well aware
=
[
14 that it had only to address that residual matter, as is f
2 15 evidenced by Witness Malec's prefiled written testimony.
I g
16
- Fourth, with respect to Doherty Contention M
d 17 44, while Mr. Doherty did not submit a statement of w
I
~
r 5
18 disputed material facts, he did append exhibits reflecting, i
19 one, ACRS concerns and ACRS's suggestion of possible need 5
20 for' additional attention to these concerns; and, two, 21 apparently contradictory positions regarding industrial 1
22 l codes and NRC guidance as to acceptable carbon content 23 for IGSCC resistant steel.
24 Obviously, Applicant had not carried its i
25 burden of establishing that no geniune issues of material l
4 ALDERSON REPORTING COMPANY, INC.
k i
., ll
.....,.. _ - - = - - -
+_
w:.
18024 s
1-8 fact remain to ba litigated.
Since the two courcos of action that Applicant proposes to take are disputed, and since the material facts are so interrelated, all 3
material facts must be litigated.
Fifth, with respect to McCorkle Contention 14, M
S our Second Order clearly stated that, absent current 3
0 updating, there remained only two outstanding issues of 4
I g
g material fact to be tried.
Applicant should have no com-Nj plaint as to this treatment by the Board, which implicitly 9, l held that material facts one, two and four were uncontro-10 oz E
varted and need not be tried.
If Applicant's written 11 p
R direct testimony substantively alters uncontroverted d
12 3
ma r.e ria l facts one, two and four, then these facts may 13 ae be litigated in this hearing.
E 14 5
Sixth, with respect to TexPirg Contention 10, 15 uw=
our Second Order clearly states that Applicant did not
~
B-16 M
address various issues of material fact and made con-37 b
18 clusional statements.
We could not deem as established P
j9 any single material fact alleged to be uncontroverted be-8n 20 cause of the complex interrelationship of the facts, and 21 it would be impracticable to separate controverted from 22 uncontroverted issues of material fact.
23 Seventh, with respect to Doherty Contention 24, 24 the Applicant failed to carry its burden of showing the 25 absence of any genuine issue of material fact as required ALDERSON REPORTING COMPANY, INC.
t.
y
_ _.. -. _ _ _, _. _. _ g _.,
18025 o.
l-9 by Adickes v.
Kross, supra.
Further, the concerns listed I
at Page 41 of the Second Order are not the Board's con-2 cerns, but rather are the Intervenor's concerns, and are so 3
intertwined with Applicant's alleged uncontroverted 4
material facts as to preclude the practicable separation A9 of uncontroverted from controverted genuine issues of 3
6 e
R material fact.
7 X
Finally, with regard to McCorkle Contention 17, 8
8 a
4 the Board acknowledges Applicant's identification of an o
9 n
5 arithmetical error regarding the percentage of lea *xage g
10 z
E that will be unfiltered.
We further note that we have p
11 m
drawn an erroneous conclusion therefrom.
However, our dE' n l
3 ne d remains unaltered to understand the capability of 13 i
S anticipated hardware performance to meet appropriate g
g h
15 release restrictions.
Even assuming that every leakage w
[.
16 path has been identified, Applicant's affiant did not Sw establish the amount of leakage assigned to each path, g
37 w
h 18 nor how that amount of leakage was derived.
Accordingly, t
E we are unable to find that any of the alleged facts j9 8n 20 are uncontroverted, and the Motion for Summary Disposition could not then and cannot now be granted either in whole 21 22 or in part.
24
/
I
/
25 l
L ALDERSON REPORTING COMPANY. INC.
_~
_ _ _ _ _ _ __