ML20085A781

Amended 830623 Response to NRC 830531 Motion for Summary Disposition of Issue 13.Reasonable Opportunity Should Be Afforded Ohio Citizens for Responsible Energy to Support Opposition Through Further Discovery.Related Correspondence

ML20085A781
Person / Time
Site:	Perry
Issue date:	06/29/1983
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	NRC
Shared Package
ML20085A784	List: ML20085A781 ML20085A788
References
ISSUANCES-OL, NUDOCS 8307070144
Download: ML20085A781 (5)

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RELATED C0ltP2SPONDENd

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June 29,jl[8h[F5 N UNITED STATES OF AMERICA f

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s e@y g NUCLEAR REGULATORY COMMISSION if Before the Atomic Safety and Licensing Boa F # c4 r

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CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440 COMPANY, et al. ) 50-441

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(Perry Nuclear: Power-Plant, )

Units 1 and 2)- ) .

OCRE'S AMENDED RESPONSE TO NRC STAFF'S MOTION FOR

SUMMARY

DISPOSITION OF ISSUE #13 At the request of the Licensing Board Chairman on June 27, 1983 that OCRE provide greater specificity to its grounds for requesting-that the Board refuse the Staff's Motion for summary disposition, pursuant to 10

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CFR 2. 749 (c) ', in OCRE!s. Response to NRC Staff's Motion for Summary Disposition of Issue #13, dated June 23, 1983, OCRE hereby files this amended response.

In the attached affidavit OCRE provides the requested specificity with regard'to the time necessary to properly respond to the summary disposition motion and the reasons for needing this time. OCRE also offers ,

below.further legal precedent to support.its position.

10 CFR 2.749 (a) allows the Board to summarily dismiss motions for summary disposition filed shortly before or during a hearing if the Board or parties would be required #

to divert substantial resources from the hearing to respond 8307070144 830629 i PDR ADOCK 05000440 Q PDR W&

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adequately to the motion. The Staff filed its motion on May 31, 1983, one day before the close of the record in the quality assurance hearing..In order to properly respond to this motion, OCRE would.have toidivert substantial resources from essential post-hearing matters, i.e., the-

' preparation of proposed findings of fact and conclusions of law, which OCRE has a right to file under Northern States Power-Co. (Prairie I'sland Nuclear . Generating Plant, Units 1 and 2), ALAB-244. In fact,.since OCRE only received documents concerning Issue 13 just prior to and.during the hearing, filing a proper and thorough response to the Staff's motion would require monumental effort. OCRE believes that, under the standard of 10 CFR 2. 74 9 (a) , the Staff's motion must be

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dismissed.

OCRE, in its June 23 response, set forth reasons

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why the record would be incomplete if the Staff's motion were granted. The Commission's precedent for this situation is Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 752, in which the Appeal Board ruled that when a gap in the evidentiary. record is present, it is the Board's responsibility to take the steps necessary (e.g. , reopening the record,aor granting a continuance) to}allowthereceiptoffurtherevidence. OCRE thus asserts that the information in its June 23 filing clearly indicates that the record will be incomplete if the Board does not wait for further information (the GE submittal and the Staff's appraisal of same) before deciding this issue.

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OCRE further . maintains that .the delay requested will not harm any party, since Applicants cannot load fuel in Perry Unit 1 until December 1984 anyway, and OCRE suspects that that date is subject to slippage.

Moreover, OCRE would note that the Appeal Board has ruled that 10 CFR 2.749 is analogous to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power.Co. s(Far.leysNuclear Plant) , ALAB-182, 7 AEC 210; Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2) , ALAB-573, 10 NRC 775.

It is quite obvious that 10 CFR 2.749 (c) is modeled after Rule 56 (f) . It therefore becomes appropriate to examine the rulings of -the courts with regard to Rule 56 (f) in dteermining OCRE's rights under that claim.

First, Rule 56 (f) reques'ts are to be granted liberally. Waldron v. British Petroleum Co., 231 F Supp 72 (DC NY.196 4) . It has frequently been held that insufficient time and opportunity for a party opposing a motion for summary judgement to obtain and present materials supporting its opposition is sufficient reason to refuse summary judgement.

Toebelman v. Missouri-Kansas Pipe Line Co., 130 F2d 1016; Friednash v. Commissioner, 209 F2d 601; Loew's Inc. v. Bays, 209 F2d 610; Harris v. Pate, 440 F2d 315; Committee for Nuclear Responsibility v. Seaborg, 463 F2d 783; Umdenstock v.

American Mortgage and Investment -Co. , 495 F2d 589. This is precisely the situation in which OCRE finds itself.

Rule 56 (f) . requests are also to be granted when the facts necessary to oppose a motion for summary judgement w

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are within. the exclusive. knowledge or control of the movant.

Waldron, supra; Slagle v. United States, 228.F2d 673 (CA5 Tex.

1956); Schoenbaum v. Firstbrook, 405 F2d 215 (CA2 NY 1968) .

Since OCRE does not have its own witnesses on th'is issue and cannot at this time present a direct case, it must rely on facts within the knowledge and control of Staff and Applicants. The only way OCBE can obtain.these facts is through discovery, which OCRE believes must be reopened to obtain further information.

It has been held that parties must be given a reasonable opportunity to make the record complete or to explain their. inability to do so, especially in cases where the party opposing summary. judgement is not represented by counsel. Lockhart v. Hoenstine, 411 F2d 455 (CA3 Pa 1969) . One court found it proper to withhold action on a motion for summary judgement to afford a party further opportunity to develop, by discovery or otherwise, a material issue of fact, since the party was.not represented by counsel and because there was possibility,.however remote, that discovery might furnish some factual support for the party's claim. Raitport v. National Bureau'of Standards, 385 F Supp.1221 (DC Pa 1974). OCRE,i.which..is.:.not represented by counsel, must be given a reasonable opportunity to support its opposition to the Staff's motion for summary disposition through further discovery, the only avenue available to it.

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OCRE would finally remind'the Board that the burden of proof in a motion for summary disposition is upon the movant, and$ that.the burden of proof in this proceeding generally is upon-the Applicants. Perry, ALAB-443, supra, and 10 CFR 2.732. OCRE believes that, if the requested relief is not granted, the burden of proof 1

will have in actuality been placed upon OCRE, in violation of the Commi~ssion's precedent and rules of practice and of all tenets of due process, Respectfully submitted, Susan L. Hiatt OCRE Representative 8275 Munson Rd.

Mentor, OH 44060 (216) 255-3158 T

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