ML20138L486

Response Opposing Util 850920 Second Motion for Summary Disposition Re Contention (D).Util Failure to Support Motion & to Show That No Genuine Issue of Matl Fact Exists Should Cause Motion to Be Denied.Certificate of Svc Encl

ML20138L486
Person / Time
Site:	Turkey Point
Issue date:	10/25/1985
From:	Hodder M CENTER FOR NUCLEAR RESPONSIBILITY, HODDER, M.H., LORION, J.
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-972 84-496-03-LA, 84-496-3-LA, OLA-1, OLA-2, NUDOCS 8510310323
Download: ML20138L486 (5)

Text

.. . . - . , _ . _ - ..- - ... - - _ - - - - . = _ _ - - _ .-

p.

!Q

1. a 4 C C 72_I & ,- l UNITED STATES OF AMERICA \

NUCLEAR REGULATORY COMMISSION ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD __

i j In the Matter of ) Docket Nos. 50-250 OLA-1

) 50-251 OLA-2 l FLORIDA POWER & LIGHT' COMPANY ) '

) ASLBP No. 84-496-03 LA Turkey Point Nuclear Units 3 & 4)

, )

t l INTERVENORS' RESPONSE TO LICENSEE'S STATEMENT OF MisTERIAL FACTS AS TO

) WHICH THERE IS NO GENUINE ISSUE TO BE HEARD WITH RESPECT TO INTERVENORS' CONTENTION (d) l This is Intervenors' response to Florida Power & Light

) Company's second motion for summary disposition dated September 20, 1985, in which FPL submitted a new motion on Intervenors's

, contention (d), which was previously resolved in favor of Intervenors in an Atomic Safety and Licensing Board Order of August 16, 1985, which required a hearing on the contention, j The new FPL motion, which deals with the same subject matter of their previous motion, is unsupported by any affidavit, and J

to the extent that it raises new issues it is therefore defective.

Furthermore, the Commission's Rules do not allow interlocutory '

]

appeal of denials of motions for summary disposition. What FPL j

! seeks to obtain here is interlocutory appeal of a prior denial {

I l

i m BE84J Q 3 s63  !

l 1

1 4

T

( 2) j for summary disposition on Contention (d). This is not permitted:

1 i'

A denial of a motion for summary disposition is interlocutory and therefore cannot be appealed. Louisiana Power & Light Co.

(Waterford Steam Electric Generating Station, Unit 3) ALAB 220, 8 AEC 93,94 (1974).

i Upon receipt of the new motion for summary disposition,

)

i Intervenors submitted the FPL Motion to their expert witness, j Dr. Gordon Edwards, Professor of Mathematics, Vanier College, l

Montreal, Canada. As of October 25, 1985, Dr. Edwards reported  !

l that the bare Motion was not fully comprehensible by him i

i because a sufficient fact basis for the new arguments stated 7 1

j in the Motion was not provided.

I i Furthermore, it should be noted that on October 15, 1985, <

l the Staff submitted their NRC Staff Response To Licensee's Second Motion For Summary Disposition of_ Contention (d) which ,

i relied upon a new affidavit submitted by Yi-Hsiung Hsil, an NRC Staff nuclear engineer,and included a newly disclosed

} SER on the Applicability of WRB-1 to Westinghouse 14x14 and 1

15 x 15 OFA Fuel. (Coincidentally, this was the same date that  ;

f

! Intervenors' attorney was in Washington for Oral Argument on i Lorion and the Center for Nucleay Responsibility vs. the U.S. i Nuclear Regulatory Commission and FPL, Case No. 82-1132. It was f 4  !

! also the same date that Intervenors' original response to FPL's Motion for sumnary disposition was due.) l

! {

I 6

i

( 3)

Because the Staff's submittal appeared to develop and supplement the new FPL motion for summary disposition, Intervenors are submitting the material to their expert, Dr. Edwards.

Under the Rules of Practice at 2.749 (a), Intervenors have twenty days, plus five for mailing, to respond to a motion for summary disposition. Although Intervenors have requested until October 25, 1985, to respond to the FPL motion, they now claim the right under 2.749 (c) to respond to the now information and arguments submitted collectively by FPL and the Staff; consisting of the FPL Motion to Dismiss, the Staf f's Support of FPL's Motion to Dismiss, the Affidavit of Yi-Hsiung Hsii,and the SER.

Intervenors claim this right to respond on November 9, 1985, because the only data that might be constamed as being supportive of the renewed motions for summary disposition is data accompanying the October 15, 1985, Staff Response.

In the alternative, Intervenors maintain that the FPL Motion and the Staff's supporting view represent an illegal procedure not allowed by the Commission Rules.(ALAB 220, 8 AEC 93, 94 (1974))

Intervenors also contend that FPL's failure to properly support their motion and failure to show that that no genuine issue of material fact exists should cause their motion to be denied, even in the event that the Board does not accept Intervonors' argument that a denial of a motion for summary dicposition is interlocutory and appeal is not allowed.

( 4 )

Intervenors' argument that denial of a motion for summary disposition is interlocutory and cannot be appealed, then the Board should issue an Order allowing Intervenors until November 9, 19d5, to respond to the cumulative effort by the Staff and FPL in their respective motions for summary dismisaal.

Respectfully submitted, ll h t n \4. l%&d

• Martin !!. Hodder 1131 NE Gb Street Attornef for the Center for Nuclear Responsibility and Joette Lorion

• signed in his absence by Joette Lorion Dated: October 25, 1985

UNITED STATES OF AMERICA NUCLEAR nEGULATORY COMMISSION BEFORE THE ATOMIC SAFETY & LICENSING BOARD In the Matter of )

)

Florida Power & Light Company ) Docket Nos. 50-250-OLA

) 50-251-OLA Turkey Point Units 3 & 4 ) ASLDP No. 84-496-03 LA

)

CERTIFICATE OF SERVICE I hereby certify that copies of the "Intervenors' Response to Licensee's Statement of Material Facts As to Which There Is No Genuine Issue to Be Heard With Respect to Intervenors' Contention (d)", have been served on the following parties by deposit in the United States Mail, first class, postage prepaid, on the date shown below:

Dr. Robert M. Lazo, Chairman Harold P. Reis, Esquire Atomic Safety & Licensing Board Newman & Holtzinger, PC U.S. Nuclear Regulatory Commission 1615 L Street NW Washington, D.C. 20555 Washington, D.C. 20036 Dr. Emmoth A. Leubke Norman A. Coll, Esquire Atomic Safety and Licensing Board Stool, Hector & Davis U.S. Nuclear Regulatory Commission 4000 SE Financial Center Washington, D.C. 20555 Miami, Fl. 33131-2398 Mitsy A. Young, Esquire Dr. Richard F. Colo Counsel for NRC Staff Atomic Safety & Licensing Board U.S. Nuclear Regulatory Cormission U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section U.S. Nuclear Regulatory Commission

,0CWh r N

• Martin H. Hodder kdb\

Washington, D.C. 20555 1131 NE 86 Street Miami, F1. 33138 (305) 751-8706 Attorney for Intervonors Dated: October 25, 1985

• signed in his absence by Joette Lorion