ML20064N817

Motion for Summary Disposition of Contentions XIII & Xvii. No Genuine Issue of Matl Fact Exists.Declaration of Svc Encl

ML20064N817
Person / Time
Site:	05000142
Issue date:	09/07/1982
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20064N821	List: ML20064N817 ML20064N830 ML20064N849
References
ISSUANCES-OL, NUDOCS 8209130003
Download: ML20064N817 (7)

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![5[d2 UNITED STATES OF AMiiRICA NUCLEAR REGULATORY COMMISSION Qg BEFORE THE AMC SAFETY AND LICENSING BOARD In the Phtter of b 'G fhff Docket No. 50-142 OL' e THE RECENTS OF THE UNIVERSITY OF CALIFORNIA (Proposed Renewal of Facility License)

(UCIA Research Reactor)

_CBG MOTIONS FOR

SUMMARY

DISPOSITION AS TO CONTENTIONS XIII AND XVII PREFACE I. The Motions Pursuant to 10 CFR 2.749 and the Board's Order of July 26, 1982, the Committee to Bridge the Cap (CBG) respectfully moves the Atomic Safety and Licensing Board for summary disposition as to Contentions XIII (Special Nuclear Materials License) and XVII (Seismic) or, in the alternative, partial summary disposition thereof.

i II. The Legal Standarti for Summary Disposition l The Commission's Rules of Practice provide for summary disposition of certain issues where it can be demonstrated incontrovertibly 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 CFR 2.749(d).

The Commission's rule authorizing summary disposition is analogous to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Co.

(Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210, 217 (1974). Subsequent ASLB decisions have analogized 10 CFR 2.749 to Rule 56 to the extent that the Federal Rule applied in the cases in question.

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11 Culf States Utilities Co. (River Bend Station, Units 1 & 2), LEP-75-10, 1 NRC 246, 247 (1975); Public Service Co. of New Hampshire (Seabrook Station, Units 1&2)LEP74-36,7AEC877,878(1974).

S e standard for summary disposition is very high. The motion can only be granted where it is quite clear what the truth is and where there ara no genuine issues of material fact that remain for hearing.

Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2, & 3),

LEP-73-29, 6 AEC 682, 688 (1973). The record will be viewed in the light most favorable to the party opposing the motion. Poller v. CBS, 368 U.S. 464, 473 (1962); Crest Auto Supplies. Inc. v. Ero Manufacturing Co. , 360 F.2d 896, 899 (7th Cir.1966); United Mine workers of America. Dist. 22 v. Ronceo, 314 F. 2d 186, 188 (10th Cir. 1963). We Commission follows these same standards with regards summary disposition motions filed under 10 CFR 2.749.

Cleveland Electric Illuminating Co. et al. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 754: Seabrook, LBP-74-36, su2Ia_, at 879.

Furthermore, the burden of proof lies upon the movant for summary disposition who must demonstrate the absence of any genuine issue of material fact.

Adickes v. Kress and Co. , 398 U.S.144,157 (1970); Perry. ALAB-443, supra, at 753: lo CFR 2.732.

Summary disposition, then, is not permitted as a means of determining, without a hearing, the merits of issues where genuine disputes exist as to l

material facts; it is not a weighing, on the pleadings, where the predominance of the evidence lies in a genuine dispute. It is to be used jn only the opposite situations where no genuine dispute exists as to any material fact, l

so that no hearing on the matter is necessary. A contention will not be summarily disposed of, one way or another, where the Licensing Board determines l that there still exist controverted issues of material fact. Houston Lighting l

and Power Company (Allens Creek Nuclear Generating Station, Unit .1), LEP-81-34,

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l iii 14 NRC 637 (1981).

III. Summary Disposition in this Particular Proceeding The process of summary disposition, intended as a means of expediting proceedings and resolving matters where no factual dispute exists, has from time to time been misused in some proceedings. Occasionally parties will attempt to use summary ' disposition procedures to delay a proceeding where they fear its outcome on~ the merits; or to attempt to overwhelm opposing parties of lesser financial means, or as a form of "shotgunning", i.e.,

moving for summary' disposition on every issue, whether or not genuine issues do exist, in the hopes of a favorable decision on at least some items through the sheer power of statistical probability.

This Licensing Board has indicated it will not tolerate such misuses of the procedures of summary disposition in this proceeding.

As Judge Frye stated at the June 29, 1982, Prehearing Conference:

JUDGE FRYE: Since we are on summary disposition in general, let me give you our thoughts, which are very general thoughts with regard to that procedure. We don't look upon it very kindly, frankly. You have got contentions that are fairly detailed in this case. You have had a wealth of discovery that has gone on.

And I personally, and I don't think any of us, are privy to all of the information that has been passed back and forth with regard to discovery. I think that if we get into an extended summary disposition procedure we are going to be delaying the hearing three to four

< months, i I personally, and I think my colleagues agree, would prefer as a general proposition to go to hearing. If we have questions we can ask witnesses. We can't ask affidavits.

3 I think that the whole thing would go much faster, armi the result

, would be on a much sounder basis after an evidentiary hearing.

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, I think with regard to su m ry disposition, surely there may be items in here that are amenable to that i process that could be handled very quickly. But I would urge you, 1

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iv when you file motions for summary disposition, that you do so on items that you feel you have got a very strong case for summary disposition. Don't spend a lot of time preparing affidavits.

In the same amount of effort you put into preparing your motion for summary disposition you could prepare your case for trial. And we would get to trial just that much faster.

TR 535-6 Iater in the same prehearing conference Judge Paris reiterated the point made earlier by Judge Frye:

JUDGE PARIS: I would like to emphasize the point raised by Judge Frye yesterday with regard to the filing of motions for summary disposition. The Board would urge you not to do this in a shotgun, broadside fashion. Our problem with motions for summary disposition is that we are unable to ask questions, and from our experience in dealing with them in the past, frequently, questions will come up. So, unless you feel that you can carry the burden of proof on an issue, let us let it go to trial rather than putting all the parties and the Board through the problem of hashing with the motion for su-ry disposition.

TR 76405 CBG is quite confident that the Board, when presented with the full evidentiery record at hearing, will find the vast predominance of that evidence to support the positions taken by CBG in this proceeding.

The Board by now has some idea of the ma6nitude of the documentation supporting CBG's concerns and the unique nature of this case. But CBG is also aware that cummary disposition is not the proper procedure for l

obtaining a decision on matters where there are factual disputes.

Evidence needs to be weighed through probing of witnesses in the full light of hearings a decision on the merits needs to be based on the fullest of evidentiary records.

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'lherefore, mindful both of the legal standard for sn==mv disposition and the Board's clear direction in this regard, CBG has chosen to move for summary on only those matters where, through admissions of the opposing parties, it is apparent that no genuine dispute exists as to the raterial facts. There may be some residual matters that should remain for hearing as to the two contentions on which summary disposition is requested, but the hearing can be expedited and simplified by removing the need for hearing on those specific matters which are clearly not in dispute.

Those particular matters are identified in the detailed motions which follow.

IV. Related Board Requests The Board, during the conference call on August 25, 1982, asked partise moving for summaiy disposition to separate each motion by contention. In complying, CBG requests that this single preface be considered by the Board with re6ards both of the enclosed motions.

In addition, the Board requested parties in their pleadings to, as Judge Luebke put it, " teach school." Indicating that there is r. ore complicated reactor physics involved with this research reactor case than in the average power reactor case, the Board asked the parties to make an effort to explain, in terms the general public could understand, the technical terms and concepts used in the motions and the contentions. CBG, in these two motions, has made a considerable effort to explain in accessible language the factual background and concepts and terminology central to the r-

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s matters being addressed. '

The two motions for summary disposition, on Contentions XIII -

and XVII, follow.

A Respdctfully,sub ed, Ly/ A&n '

Daniel Hirsch President COMMITTEE TO BRIDGE THE GAP dated at Ben Lomond, CA September 7, 1982*

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• Because of illness of Mr. Hirsch, C3G requested, and the Board granted (via a phone call from Judge Paris) a two-day extension in which to file these motions. Still down with the flu on the 3rd, Mr. Hirsch attempted to reach Judge Frye, but was informed he em on vacation. CBG left a message requesting leave to file the motions on the next business day.

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1 UNITED STATES OF APERICA NUCIEAR REGUIATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Fatter of Docket No. 50-142 THE REGENTS OF THE UNIVFY2ITY OF CALIFORNIA (Proposed Renewal of Facility License)

(UCLA Research Reacter)

DECIARATION OF SERVICE I hereby declare that copies of the attached: MOTION FOR

SUMMARY

DISPOSITION in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, postage Prepaid, addressed as indicated, on this date: September 7. 1982 .

s John H. Frye, III, Chairman Christine Helwick

- Atoalc Safety & Licensing Board Glenn R. Woods

!f.S. Nuclear Regulatory Commission Office of General Counsel 590 University Hall Dr. Emmeth A. Imebke 2200 University Avenue ,

Adminds trative Jtxige Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Mr. John Bay Washington, D.C. 20555 3755 Divisadero #203 San Francisco, CA 94123 Dr. Oscar H. Isris Administrative Judge Sarah Shirley Atomic Safety and Licensing Board Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Vashington, D.C. 20555 1685 Main Street Chief, Docketing and Service Section Office of the Secretary U.S. Nuclear llegulatory Commission Washington, D.C. 20555 Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 attention: Ms. Colleen Woodhead William H. Cormier f Office of Administm tive Vice Chancellor University of California _

[ g 405 Hilgard Avenue ,

Los Angeles, California 90024 President COMMITTEE TO BRIDGE THE GAP J