ML20134H275

Motion to Strike,Or in Alternative,For Leave to Reply to Intervenor 850809 Response to Applicant 850715 Motion for Summary Disposition of Contention 7.Certificate of Svc Encl

ML20134H275
Person / Time
Site:	Vogtle
Issue date:	08/26/1985
From:	Churchill B GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-349 OL, NUDOCS 8508280347
Download: ML20134H275 (10)

Text

f COCXETED UStaC August 26, 1985.

85 AWi27 AU :38 GFFl:E Or SECEW <

UNITED STATES OF AMERICA $htfh NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424 (OL)

) 50-425 (OL)

(Vogtle Electric Generating Plant, )

Units 1 and 2) )

APPLICANTS' MOTION TO STRIKE, AND IN TIIE ALTERllATIVE FOR LEAVE TO REPLY TO, INTERVENORS' RESPONSE TO APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 7 I. Introduction On July 15, 1985, Applicants submitted " Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 7 (Ground-water)" and " Applicants' Statement of Material Facts As to Which There Is No Genuine Issue to Be Heard Regarding Joint Intervenors' Contention 7 (Ground-water)." Applicants sup-ported their motion with the Affidavit of D. S. Jagannathan, '

Stephen J. Cereghino, and Mark L. Mayer, and the Affidavit of Thomas W. Crosby, Clifford R. Farrell and L. R. West.

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t On August 9, 1985, Joint Intervenors late-filed "Interve-nors' Response to Applicants' Motion for Summary Disposition of Contention 7." Joint Intervenors did not support their re-sponse by countering affidavit or otherwise, but instead pur-ported to recount an " analysis" by William F. Lawless. Joint Intervenors-also submitted "Intervenors' Statement of Material Facts Relating to Contention 7," which repeated nearly verbatim Mr. Lawless' comments. Joint Intervenors amended their re-sponse on August 21, 1985.

Applicants movo the Board to strike doint Intervenors' Re-sponse. As discussed below, Joint Intervenors' Response is not supported by evidence, as is required by the Commission's Rules of Practice. Furthermore, Mr. Lawless, whom Joint Intervenors characterize as their expert witness on ground-water (Interve-nors' Response at 1), is not such an expert and is not compe-tent to testify to the statements in his " analysis."

Alternatively, Applicants move the Board for leave to file a

a substantive reply to Intervenors' Response. Intervenors' Re-sponse contains a number ot* inaccurate and misleading state-ments of which the Board should be aware.

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w II. Joint Intervenors' Response Is Not Supported By Evidence and Should Be Stricken

'As noted above, Applicants supported their motion by affi-davit. In such case, 10 C.F.R. S 2.749(b) provides:

When a motion for summary disposition is made and supported as provided in this sec-tion, a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidaviyj or as otherwise provided in this section-must set forth specific facts showing that there is a genuine issue of fact. If no such answer is filed, the decision sought, if appropriate, shall be rendered. (Foot-note added).

This provision is drawn from F. R. Civ. P. 56(e).

The purpose of F. R. Civ. P. 56(e), and consequently of 10 C.F.R. S 2.749(b), is to pierce the pleadings. See Adickes

v. S. H. Kress & Co., 398 U.S. 144, 159 n.20 (1970). See also Advisory Committee Note to 1963 amendment to Fed. R. Civ. P.

56(e) ("The very mission of the summary judgment procedure is to pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial").

Consonant with this purpose, where a movant has made a proper showing for summary disposition and has supported his motion by affidavit, the opposing party must proffer countering 1/ 10 C.F.R. S 2.749 permits an answer to be supported by depositions and answers to interrogatories, in addition to affidavits.

evidentiary material or explain in an affidavit why it is im-practical to do so. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-32A, 17 N.R.C. 1170, 1174 n.4 (1983), citing Adickes v. S. H. Kress & Co., 398 U.S.

144, 160-61 (1970). Joint Intervenors have failed to do so de-spite clear notice of the obligation. See Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 7 at 5-6. The Board should therefore strike Joint Intervenors' re-sponse. Any other action would ignore both the express mandate in 10 C.F.R. S 50.49(b) that a party opposing the motion may not rely upon mere allegations or denials and the very purpose of the Commission's regulation.

This defect in Joint Intervenors' Response would not be cured even if Mr. Lawless' " analysis" were resubmitted as an affidavit. 10 C.F.R. S 2.749(b) requires that affidavits set forth such facts as would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters stated therein. Mr. Lawless' comments, however, are vague, speculative, and inadmissible lay opinion, and many of the comments are irrelevant.

Joint Intervenors' response does not demonstrate that Mr.

Lawless is competent to give expert opinion testimony. Their response does not even indicate that Lawless has personal knowledge of the matters he recounts or that he believes them to be correct. Moreover, Mr. Lawless is not a geologist or hydrogeologist. See Intervenors Campaign for a Prosperous Georgia and Georgians Against Nuclear Energy Response to Appli-cants' Third Set of Interrogatories and Request for Production (Feb. 6, 1985) at 6-7 (Response to interrogatory G-4). Mr.

Lawless has never studied geology, and has studied hydrology only as part of another course he took at Louisiana State Uni-versity. Deposition of William Lawless (March 26, 1985) at 55-56.

III. Joint Intervenors' Pesponse is Inaccurate, and Applicants Should Be Permitted to Reply Applicants have reviewed Intervenors' Response carefully and have found a number of inaccurate statements of which the Board should be aware. For example, Intervenors' Response at page 3 states that the 1971 ground-water chemical analysis should be updated, but fails to mention that Joint Intervenors were informed of more recent analyses during discovery and the data made available to them. At the same page, Joint Interve-nors state it has been found that Strontium-90 contamination in the VEGP area is significant, and they cite the FES for this proposition. Applicants are aware of no such finding in the FES. An even more egregious example occurs on page 7. Joint l

i Intervenors state that "The SRP found contamination traveled about 4 or more times faster than had been calculated with l

l 1

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h similar but more conservativo methods than used by VEGP."

Joint Intervenors, however, offer no citat;on and conveniently omit mentioning the fact that the increased travel time was the result of a stream erosion, which reduced a 1700-foot flowpath by about 1000 feet. A number of other inaccurate factual statements exist. In addition, Intervenors' Response is re-plete with mischaracterizations of Applicants' statements in Applicants' motion and affidavits. See e.g. Intervenors' Re- ,

sponse at 8 (commenting on paragraphs 14-18 of the Affidavit of Crosby et al., confusing exploratory holes with observation wells, and incorrectly stating that closure is not discussed.S/

Joint Intervenors' Response also raises new arguments which Joint Intervenors failed to disclose during discovery.

For example, Mr. Lawless alleges that settlement of the VEGP facility will compromise the integrity of the marl as an aquiclude. See Intervenors' Response at 3. Applicants, how-ever, asked Joint Intervenors and Mr. Lawless during discovery to describe any basis they might have to believe the marl was not an effective aquiclude. Neither Joint Intervenors nor Mr.

Lawless ever mentioned a concern about settlement. CPG /GANE's 1/ These and other inaccuracies demonstrate the wisdom of requiring responses to be supported by countering eviden-tial material. Applicants assume that were Mr. Lawless l required to attest to having personal knowledge of the information in his comments and to attest to the veracity of that information, he would have been more circumspect l and his comments more accurate. I l

Response to Applicants' First Set of Interrogatories and Re-quest for Production of Documents (Dec. 5, 1984) (answers to interrogatories 7-22 to 7-27 on unnumbered pages 8-9); Interve-nors Campaign for a Prosperous Georgia and Georgians Against Nuclear Energy Response to Applicants' Third Set of Interroga-tories and Request for Production (Feb. 6, 1985) at 5 (answers to interrogatories 7-57 and 7-58); Deposition of William F.

Lawless (March 26, 1985) at 83-88. This failure by Joint In-tervenors to respond fully during discovery has prevented Applicants from anticipating and addressing Joint Intervenors' concern. Applicants should therefore be permitted to reply.

Applicants are aware of NRC precedent holding that a reply to a response to a motion should not be submitted until after permission to file a reply is received. See e.g. Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),

LBP-76-38, 4 N.R.C. 435, 441 (1976). Applicants.are also aware, however, of a recent, unpublished Appeal Board Order indicating that the preferred practice is to file the reply along with the motion. Louisiana Power & Light Co. (Waterford l Steam Electric Station, Unit 3), Docket No. 50-382, ASLAB Order I dated Feb. 1.3, 1985. No: knowing whether this Board would wish to consider Applicants' proposed reply in conjunction with l

Applicants' motion for leave to reply, Applicants intend to submit their proposed reply to the Board as soon as it is completed.

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O IV. Conclusion For the reasons discussed above, Applicants move the Board to strike Tntervenors' Response to Applicants' Motion for Sum-mary Disposition of Contention 7, and in the alternative, for leave to reply to that response.

Respectfully submitted,

(

G h ge N owbridge', P.C.

Bruce W. Churchill, P.C.

David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE James E. Joiner, P.C.

Charles W. Whitney Kevin C. Greene Hugh M. Davenport TROUTMAN, SANDERS, LOCKERMAM

& ASHMORE Counsel for Applicants Dated: August 26, 1985 f

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OCCKETED USNRC 8fflj 'b 0FFICE 0F dECEtlis-00CKETiNG & SEPVlf:f.

UNITED STATES OF AMERICA BRANCH NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

~

In the Matter of )

)

GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424 (OL)

) 50-425 (OL)

(Vogtle Electric Generating Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion to Strike, and in the Alternative for Leave to Reply to, Interve-nors' Response to Applicants' Motion for Summary Disposition of Contention 7," dated August 26, 1985, were served upon those persens on the attached Service List by deposit in the United States mail, first class, postage prepaid, this 26th day of August, 1985.

m h David R. Lewis

Dated: August 26, 1985

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4 I

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION t

Before the Atomic Safety and Licensing Board 1

In the Matter of )

) -

GEORGIA POWER COMPANY, et --

al. ) Docket No. 50-424

) 50-425 (Vogtle Electric Generating Plant, )

Units 1 and 2) )

SERVICE LIST Morton B. Margulies, Chairman Douglas C. Teper Atomic Safety and Licensing Board 1253 Lenox Circle U.S.' Nuclear Regulatory Commission Atlanta, GA 30306 Washington, D.C. 20555 Mr. Gustave A. Linenberger Laurie Fowler Atomic Safety-and Licensing Board 218 Flora Avenue, N.E.

U.S. Nuclear Regulatory Commission Atlanta, GA 30307 ,

Washington, D.C. 20555 Dr. Oscar H. Paris Tim Johnson Atomic Safety and Licensing Board Campaign for a Prosperous U.S. Nuclear Regulatory Commission Georgia Washington, D.C. 20555.

175 Trinity Avenue,'S.W.

Atlanta, GA 30303 Bernard M. Bordenick, Esq.

Office of Executive Legal Director Docketing and Service Section U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D.C. 20555 U.S. Nuclear Regulatory f Commission l Atomic Safety and Licensing Washington, D.C. 20555

[ Board Panel

! U.S. Nuclear Regulatory Commission Bradley Jones, Esquire Washington, D.C. 20555 Regional Counsel U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Panel Suite 3100 I

U.S. Nuclear Regulatory Commission 101 Marietta Street Washington, D.C. 20555 Atlanta, GA 30303

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