ML20053D253

Responses Opposing NRC 820513 Motion for Revocation of ASLB Order Suspending Consideration of NRC Motion for Summary Disposition of Contention Xx.Relevant Discovery Should Be Completed.Declaration of Svc Encl

ML20053D253
Person / Time
Site:	05000142
Issue date:	05/28/1982
From:	Shirley S SANTA MONICA, CA
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8206040234
Download: ML20053D253 (7)

Text

- - .

ROBERT M. MYERS '

~7 .

c- t City Attorney C

SARAH J. SHIRLEY Deputy City Attorney 16 85 Mait S tree t Room 310 Santa Monica, CA 90401 (213) 393-9975 ext. 321 Attorneys for CITY OF SANTA MONICA 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 OF CALIFORNIA ) License No. R-71)

)

(UCLA Research Reactor) )

)

CITY' S RESPONSE TO NRC STAFF MOTION FOR REVOCATION OF BOARD ORDER SUSPENDING CONSIDERATION OF STAFF'S MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION XX I.

INTRODUCTION On May 13, 1982, NRC Staff filed its Motion for Revoca-tion of Board Order Suspending Consideration of Staff's Motion for Summary Disposition of Contention XX. The City of Santa Monica (hereinaf ter " City"), an Interested Municipality in this proceeding, hereby responds in opposition to Staff's motion, primarily for the reason that the Motion for Summary Disposition to which same relates cannot and should not be r20604o234 e2052e 1)303 PDR ADOCK 05000142 S G PDR

/

considered prior to the completion of discovery relevant to Contention XX.

II.

. BACKGROUND On May 22, 1980, Committee to Bridge the Gap (herein-af ter "CBG") filed its Petition for Leave to Intervene in this proceeding, and thereaf ter, pursuant to Board invitation, supplemented its original petition with the contentions it sought to have litigated. One such contention, Contention XX, challenged the adequacy of Applicant's phpsical security plan and its implementation. By Order dated March 20, 1981, CBG's Contention XX was admitted, as amended, as cronerly being at issue before the Board. On April 13, 1981, Staff moved for summary disposition of Contention XX, alleging that no genu-ine issue of f act existed with respect thereto, in response to which the Board ruled that same was premature and should not

, be considered until after discovery had been completed (which at that time was anticipated to be July 30, 1981). The Board subsequently af firmed said ruling af ter granting Staff's' motion for reconsideration of its order.

Discovery was not completed by July 30, 1981, as anti-cipa te d . After Contention XX was admitted by the Board, CBG served interrogatories upon UCLA inquiring about security matters. In response thereto , UCLA obtained a protective order from the Board on July 1, 1981, which provided, among other things, for suspension of the discovery schedule. On April 16, 1982, the Board ordered CBG to file its proposed affidavit of nondisclosure and protective order, and to iden-tify those individuals-it wishes to have access to security information. Once the rules relevant to the safeguarding of sensitive information are in place, discovery on Contention XX, which has been delayed thus far, will presumably commence.

III.

DISCUSSION As grounds for its Motion, Staff asserts that discovery in this proceeding is near completion and that a ruling on the summary disposition motion could moot the issues raised by CBG concerning the qualification of witnesses and others and the protected access procedures. The City respectfully sub-mits that neither argument has merit.

As set forth in Paragraph II above, the Board has spe-cifically held that Contention XX, as admitted, is a proper issue ih this proceeding, and in so doing has det' ermined that CBG has made a sufficient showing of relevancy to warrant dis-covery with respect thereto. Notwithstanding such determina-tion, Staff has, on two prior occasions, sought to restrict -

indeed, eliminate altogether - CBG's discovery rights relevant to information.concerning the UCLA physical security plan and Contention XX.by having Contention XX removed from considera-tion through the summary disposition procedure. The Board has explicitly rejected Staff's attempts, holding that considera-tion of summary disposition motions should await completion of discovery.

The Board's reasoning regarding the timing of considera-tion of motions for summary disposition is sound. In order for summary disposition to be granted, the record must be ade-quate fo.r the Board to decide the legal question presented by the motion, to wit, whether the record clearly demonstrates the absence of any genuine issue of material fact. An ade-quate record requires thorough development of the f acts , and the discovery process has long been the essential tool by which same is accomplished. Discovery serves to identify the real points of dispute between the parties and the facts rele-vant to those issues, and to ascertain the issues about which there is no controversy. Until discovery has been completed, it is impossible to conclude, as a matter of law, that no material issue of fact exists.

The discovery schedule in the instant proceeding has.

been suspended for almost one year, and discovery' with respect

\ <

to Contention XX is only now about to commence. There has been no substantial development of facts pertaining to the security issue. The City submits that the present record provides a totally inadequate basis on which to assert, argue against or conclude that there is no material issue of f act with respect such Contention. The propriety of summary dis-position cannot be fairly addressed until after Contention XX discovery _has been completed.

The adequacy of the UCLA physical security plan and its implementation constitutes one of the foremost issues in this proceeding. Indeed, it is an issue of grave concern to

' x, The City.. The danger: to the general public, and to the resi-dents of' Santa Monica in particular, should Yabotage precipi-tate an accident or other.inc;ident resulting in the release into the gir of radioactive material cannot be over emphasized.

Given theLserious threat to public health and safety.which an inadequate security system poses, it is essential that all facts relevant to Contention XX be fully developed and that the Board carefully scrutinize Applicant's security plan and consider the allegations that same is inadequate in light of such facts. Sb <

crucial an issue as the adequacy of Applicant's security should notbedecidedprematurelyonthebasisoftheprekentindefinite ,

t factual foundatio- oather, the issue should be fully explored, and a motion for . mary disposition with respect thereto enter-tained only after all relevant facts are before the Board. [

s IV.

On the basis of the foregoing, the Cit'y urges the Board to reject Staf f's attempt to remove the security issue from this case by thwarting at the outset efforts to develop all facts with respect thereto. Staff's Motion, which was deemed premature one year ago, is likewise premature today and should be denied.

i DATED: May 28, 1982 Sincerely submitted, ROBERT M. MYERS, City Attorney

BY

SARAH J. SHIRLEY

, - - e , , , . - , , - - - - - - , ,,- , , - --, . - -.

UNITED STATES OF AfiERICA NUCLEAR REGULATORY COI1!!ISSION BEFORE THE ATOf1IC SAFETY AND LICENSING BOARD In the 11atter of ) Docket No. 50-142 ^

)

THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of ,

OF CALIFORNIA ) License No. R-71)

)

(UCLA Research Reactor) )

)

DECLARATION OF SERVICF.

I hereby declare that cooles of the attached:

CITY 'S RESPONSE TO NRC STAFF F10 TION FOR REVOCATIOl1 OF BOARD ORDER SUSPENDING CONSIDERATION OF STAFF 'S 110 TION FOR SUtif1ARY DISPOSITION OF CONTENTION XX in the above-captioned proceeding have been served upon the service list attached hereto as Exhibit A by deposit in the United States mail, first class, postage prepaid, addressed as indicated, on this the 28th day c,f 11ay, 1982.

SARAH SHIRLEY /

Deputy City Attorney ll v- + - - -- - - - e y,- . - . , , - - - - , , , - - , - - -

e y-

.. s EXHIBIT "A" SERVICE LIST John H. Frye, III, Chairnan Dr. Emmeth A. Luebke Atomic Safety & Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Board Wcshington, D.C. 20555 U.S. Nuclear Regulatory Commission ..

Washington, D.C. 20555 Dr. Oscar H. Paris Chief, Docketing and Service Section Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Counsel for NRC Staff William H. Cormier U.S. Nuclear Regulatory Commission Of fice of Adninistrative Vice Washington, D.C. 20555 Chancellor Attn: Ms. Colleen Woodhead University of California 405 Hilgard Avenue Los Angeles, Chlifornia 90024 Christine Helwick Mr. John Bay Glenn R. Woods 3755 Divisadero #203 Office of General Counsel San Francisco, CA 94123 590 University Hall 2200 University Avenue Barkeley, CA 94720 CO!1MITTEE TO BRIDGE THE GAP Daniel Hirsch 1637 Butler Avenue ~#203 Box 1186 Los Angeles, CA 90025 Ben Lomond, CA 95005 Nuclear Law Center c/o Dorothy Thompson 6300 Wilshire #1200 Los Angeles, CA 90048 9

(

$