ML20039B778
| ML20039B778 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 12/21/1981 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20039B771 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8112230546 | |
| Download: ML20039B778 (9) | |
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UNITED STATES Or' A:tERICA NUCLEAR REGO:.ATORY C0ftMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CINCINNATI GAS & ELECTRIC COMPANY, )
Docket No. 50-358-OL g al.
(Zimmer Nuclear Power Station.
)
Unit 1)
)
ME!!0RANDUM IN SUPPORT OF STAFF'S MOTION FOR SUPJtARY DISPOSITION OF DR. DAVID B. FANKHAUSER'S CONTENTIONS 2(b),(c),(e),(f) AND (g) 1.
Statement of the Proceeding On March 29, 1976, the Licensing Board admitted Contentions 2(a),(b),
(c),(d),(e),(f), and (g) which were proferred by Dr. Fankhauser as well as contentions of other persons which are not here relevant.
No evidentiary hearing has been held on Dr. Fankhauser's Contention 2 (including subparts) and no discovery by any party had been-held on said contention.
At the prehearing conference held on October 29 and 30,1981, Dr. Fankhauser withdrew Contention 2(a) and (d), transcript pages 4663 and 4763.
It is presently contemplated that those subparts of Dr. Fankhauser's Conten-tion 2 which have not heretofore been dismissed or withdrawn will be heard at an evidentiary hearing to be held in February,1982.
2.
Dr. Fankhauser's Contentions 2(b),(c),(e),(f) and (g)
Dr. Fankhauser's contentions which are the subject of this motion, are set out below.
2.
The Applicants' plans for monitoring radiological releases from the plant are irladequate because:
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(b) no provision has been made for directly involving the citizenry in the vicinity of the site in the monitoring of the plant's activities, (c) it is unclear from the Applicants' plans whether all radioactive emissions will be monitored or whether only certain isotopes will be monitored.
(e) the statement by Applicants that the monitoring will be "as comprehensive as possible" is vague and monitoring methods are unclear, (f) no monthly assays of isotopic concentrations in area food-stuffs are provided for, and (g) there are no plans for a ring of monitoring stations around the site to continuously nonitor gaseous emissions.
3.
Statement of Material Facts Not At Issue.
The following facts are material to Dr. Fankhauser's contentions and
- are not in dispute.
(a) No provision has been made for directly involving the citizenry in the vicinity of Zimmer in radiological monitoring of the facility's activities (Meinke affidavit).
(b) There are no requirements of the NRC to involve directly citizenry in the vicinity of Zimmer in the radiological monitoring of its activity (Meinke affidavit).
(t)
It is clear from Section 11 of the applicants' Final Safety Evaluation Report (FSAR) which isotopes will be monitored (Meinke affi-davit, Stoddart affidavit).
(d) The applicants' radiological monitoring program is clear and well defined (Meinke affidavit, Stoddart affidavit).
(e) Regular assays of isotopic concentrations in area food-stuffs will be made (Meinke affidavit, FSAR page 11.6-21).
o (L (f) The monitoring frequency of food-stuffs _ by the applicants is adequate to protect the public health and safety (Meinke affidavit; FSAR511.6).
(g) The NRC does' not require a ring of real-time (continuous) radiological monitors around a commercial nuclear power facility (Meinke affidavit).
(h) The applicants' radiological monitoring program as described in Section 11 of the FSAR fully complies with the NRC's regulations, and with the NRC Staff position as set forth in Regulatory Guide 4.1 (Rev. 1) (Meinke affidavit).
(1) The applicants' plans for monitoring radiological releases in i
the vicinity of the Zimmer site are adequate and satisfy the requirements of the NRC.
(Meinke and Stoddard Affidavits) 4.
Statement of Authorities and Argument.
Contentions admitted in. this proceeding are properly disposable by a motion for summary disposition as provided by 10 C.F.R. 5 2.749.
10 C.F.R. 5 2.749 is based upon Rule 56 of the Federal Rules of Civil Procedure and the Model Summary Decision Rule drafted by the Administrative Conference of the United States for use by administrative agencies.
- See, Gellhorn & Robinson, Summary Judgment in Administrative Adjudication, 84 Harv. L. Rev. 612, 628 (1971).
The summary disposition procedures set forth in 10 C.F.R. l 2.749 are analogous to the summary judgment procedures contained in Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974). A hearing on the questions raised by an intervenor is not inevitable.
See
. Philadelphia Electric Co. (Peach Bottom Atomic Power Station Units 2 and 3), ALAB-654, 14 HRC
, Slip op, at 4 (September 11,1981). The purpose of such a rule is to avoid hearings, unnecessary testimony and cross exanination in areas where there are no material issues to be tried.
The Supreme Court has very clearly stated that there is no right to a trial except so far as there are issues of fact in dispute to be l
determined.
Ex parte Peterson 253 U.S. 300, 309, 310 (1920).
Under the Federal Rules the motion is designed to pierce the general allegations in the pleadings, separating the substantial from the insubstantial, by requiring the parties to support their allegations with either affidavits, depositions, interrogatories or other material of evidentiary value.
6 Moore 956.04[1]. Here allegations in the pleadings will not create an issue as against a motion for summary disposition supported by affidavits.
10 C.F.R. 5 2.749(b); F.R. Cir.
P. 56(c).
The Commission's Rules of Practice provide for sunnary disposition of issues where the motion and its attachments (affidavits, depositions, etc.) show that there is no genuine issue as to any material fact and that the movant is entitled to a decision as a matter of law.
10 C.F.R.
Q 2.749(d).
The use of summary disposition has been encouraged by the Commission and the Appeal Board to eliminate litigation over contentions for which an intervenor has failed to establish the existence of a genuine issue.
- See, e.g., Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241 (1973), aff'd sub nom BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir.1974); Houston Lighting and
Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 550-51 (1980); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1-8 2), ALAB-130, 6 AEC 423, 424-25 (1973); and, Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 (1973).
In a recent Statement of Policy, the Commission emphasized the availability of summary disposition in appropriate cases, as a means of expediting the hearing process.
In Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533 (1981), the Commission stated as follows:
"In exercising its authority to regulate the course of a hearing, the boards should encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues."
Although the burden of showing the absence of any genuine issue of fact is upon the moving party. "a party opposing the motion...must set forth specific facts showing that there is a genuine issue of fact."
10 C.F.R. I 2.749(b); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451, 453 (1980).
Mere allegations or denial will not suffice.
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246, 248 (1975).
The Appeal Board noted recently that a hearing on each issued raised "is not inevitable," but " wholly depends upon the ability of the intervenors to demonstrate the existence of a genuine issue of material fact...."
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654, 14 NRC (Sept. 11, 1981) (slip op., at 4).
- In addition, the Appeal Board has also stated:
"All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."
10 C.F.R. 5 2.749(a); Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit No.1), LBP-77-45, 6 NRC 159,163 (1977).
Finally, to draw on federal practice, the Supreme Court has pointed out that Rule 56 of the Federal Rules of Civil Procedure does not permit plaintiffs to get to a trial on the basis of the allegations in the complaints coupled with the hope that something can be developed at trial in the way of evidence to support the allegations.
First
, National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-90 i
(1968),rehearingden.,393U.S.901(1968). Similarly, a plaintiff may not defeat a motion for summary judgment on the hope that on cross-examination the defendants will contradict their respective affidavits.
To permit trial on such a basis would nullify the purpose of Rule 56 which permits the elimination of unnecessary and costly litigation where no genuine issues of material fact exist.
See Orvis v. Brickman, 95 F.
l Supp. 605, 607 (1951), aff'd 196 F.2d 762 (D.C. Cir.1952), cited with approval in River Bend, supra,1 NRC at 248.
To defeat summary disposition an opposing party must present l
material, substantial facts to show that an issue exists.
Conclusions alone will not suffice.
River Bend, LBP-75-10, supra at 248; Perry, ALAB-443, supra, at 754.
The federal courts have clearly held that a party opposing a motion l
l for summary judgment is not entitled to hold back evidence, if any, until l
the time of trial.
Lipschutz v. Gordon Jewelry Corp. 367 F. Supp. 1086, L.
. 1095 (SD Texas 1973); the opponent must come forth with evidentiary facts to show that there is an outstanding unresolved material issue to be tried.
Stansifer v. Chrysler Motors Corp. 487 F.2d 59, 63 (9th Cir.
1973); and Franks v. Thompson, 59 FRD 142, 145 (M.D. Alabama 1973).
Summary disposition cannot be defeated by the possibility that Dr.
Fankhauser might think of something new to say at hearing O'Brien v.
ficDonald's Corp. 48 FRD 373, 374 (N.D. Ill. 1970); nor can the Staff's motion be defeated on the hope that Dr. Fankhauser could possibly uncover something at hearing. Hurley v. Northwest Publications, Inc.
273 F. Supp. 967, 974 (flinn.1967).
Now, in opposition to this motion, is the time for Dr. Fankhauser to coma forth with material of evidentiary value to contravene the Staff's motion and to show the existence of a material fact to be resolved at an evidentiary hearing.
The Contention of Dr. Fankhauser is that:
(b) the applicant's moni-toring plans do not include involvmeent by the local citizenry and as Dr. Meinke states this is true because in the judgment of the NRC technical staff such involvement is not necessary for adequate protection of public health and safety.
Primary protection of public health and safety is assured through in-plant point-source monitors with TLDs being located in the environs of the plant for verification: (e) Dr. Fankhauser questions what isotopes would be monitored and they are now listed in Chapter 11 5 6 of the FSAR, as stated by Mr. Stoddart. Dr. Fankhauser found the phrase "as comprehensive as possible" to be vague.
That phrase is no longer in Chapter 11 of the FSAR but has been replaced with a detailed program that meets EPA and NRC requirements, as stated by Dr. Meinke:
(f) Dr. Fankhduser states that monthly assays of feed are not required and thus be infers some defect. As Dr. !!einke states Chapter 11 i 6 of the FSAR
~
ncw provides for regular monitoring of food in the Zimmer area. The NRC has studied how effectively to monitor food and its position is set forth in the Radiological Assessment Branch Technical Position which requires simi-monthly radioassays of milk when animals are in pasture. This frequency exceeds Dr. Fankhuaser's wants. The NRC Staff has concuded that milk is a valid indicator of radioactivity in food and thus NRC does not require assays of leafy vegetables - unless milk is not sampled.
(g) Dr. Fankhauser alleges a need for a ring of real-time monitors around Zimmer. The Staff position (Reg. Guide 4.1) does not require such monitors.
As stated supra, in-plant monitors, and the condition of the reactor as 1
. disclosed in the control room, provide adequate assurance of public health and safety.
The program proposed by the applicants fully complies with Reg. Guide 4.1 and in the Staff judgment provides an adequate level of protection of the public health and safety.
In addition, although not a part of this motion, the Staff is informed the applicant will place 12 real-time monitors around the Zimmer facility. The facts raised by Dr. Fankhauser's allegations are not in dispute (lieinke and Stoddart affi-davits) and the Staff contends that the matters raised by Dr. Fankhauser do not diminish the protection of publich health and safety afforded by the radiological monitoring plan submitted by the applicants.
Attached to the Staff's motion are affidavits of W. Wayne Meinke and Phillip G. Stoddart, both well qualified experts in monitoring radioactive elements and in knowing NRC requirements.
Their affidavits clearly show that there are no issues of fact in dispute regarding Dr. Fankhauser's Contentions 2(b),(c),(e),(f) and (g), that the NRC
requirements have been met, and in the judgment of flRC's qualified experts, the monitoring program proposed by the Applicants is adequate.
The discussion above demonstrates that the Staff is entitled as a matter
~of law to have its motion granted.
Based upon the above discussion and the attached supporting affidavits of Dr. lieinke and tir. Stoddard, there are' no material facts on which an evidentiary hearing is necessary.
Respectfully submitted, Charles A. Barth Counsel for f4RC Staff Dated at Bethesda, Maryland this 21st day of December, 1981
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