ML20154E176

Licensee Memorandum of Law in Support of Motions for Summary Disposition.* Requests Ample Notice Should Board Decide to Deny Summary in Part or in Whole

ML20154E176
Person / Time
Site:	Three Mile Island
Issue date:	05/09/1988
From:	Baxter T GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20154E131	List: ML20154E128 ML20154E163 ML20154E176 ML20154E199
References
OLA, NUDOCS 8805200116
Download: ML20154E176 (7)

Text

. _ _ _ . _

4 4 .

00CMETE0 May9,IIBTI is sw 10 e7:j3 ,

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CE

[0hKg I BRAKOi BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GPU NUCLEAR CORPORATION ) Docket No. 50-320-OLA  !

. ) (Disposal of Accident-(Three Mile Island Nuclear ) Generated Water)

Station, Unit 2) )

LICENSEE'S MEMORANDUM OF LAW IN SUPPORT OF MOTIONS FOR

SUMMARY

DISPOSITION I. Introduction Licensee GPU Nuclear Corporation is filing four motions with the Atomic Safoty and Licensing Board seeking summary disposi- i tion, pursuant to 10 C.F.R. S 2.749, of Contentions 1, 2, 3, ,

4(b), (c) and (d), 5(d), 6 and 8, which were advanced by Susquehanna Valley Alliance and Three Mile Island Alert (Joint Intervenors).1# In order to avoid repetition, Licensee sets forth in this single memorandum of law the general standards by which motions for summary disposition are to be decided.

1/ One motion seeks summary disposition of the contentions on alternatives (1, 2, 3 and 8). One motion addresses chemicals (Contention 6 and the part of 4b on chemicals). Another motion is directed at Contentions 4c, 4d, and the remainder of 4b (the part on radionuclides). The fourth motion seeks summary disposi-tion of Contention 5d.

8805200116 080509 i PDR ADOCK 05000320 0 PDR

y ,

6 II. Governino Leoal Standard e

The admission of a contention for adjudication, under the standards of 10 C.F.R. $ 2.714, is not an appraisal of the merits of a contention, but merely a determination that it meets the criteria of specificity, asserted basis and relevance. A hearing on an admitted contention, however, is not inevitable. Licensing boards are authorized to decide an admitted contention on its merits in advance of trial on the basis of pleadings filed.

"Any party to a proceeding may move, with or without sup-porting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding." 10 C.F.R. 5 2.749(a). The standard embodied in the regulation is that "(t]he presiding officer shall render the decision sought if the filings in the proceeding, deposi-tions, answers to interrogatories, and admissions on file, to-

! gether with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact i and that the moving party is entitled to a decision as a matter l

l of law." 10 C.F.R. 5 2.749(d).

l The Commission and its adjudicatory boards have long encour-

! aged the use of this summary disposition process where the propo-I nent of a contention has failed to establish that a genuine issue l

i exists, so that evidentiary hearing time is not unnecessarily de-I voted to such issues. Statement of Policy on Conduct of Licens-i ino Proceedinos, CLI-81-8, 13 N.R.C. 452, 457 (1981); see also l

5 le Houston Lichtina and Power Co. (Allens Creek Nuclear Generating-

. Station, Unit 1), ALAB-590, 11 N.R.C. 542, 550 (1980) (". . . the

.Section 2.749 summary disposition procedures provide in reality as well as in theory, an efficacious means of avoiding unneces-sary and possibly time-consuming hearings on demonstrably insubstantial issues . . .").

The standards governing summary disposition motions in an NRC proceeding are quite similar to the standards applied under Rule 56 of the-Federal Rules of Civil Procedure. Alabama Power Co x (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB -18 2, 7 A.E.C. 210, 217 (1974); Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 28), ALAB-554, 10 N.R.C. 15, 20 n.17 (1979). Where, as here, motions for summary disposition are properly supported pursuant to the Commission's Rules of Practice, a party opposing the motions may not rest upon the mere allegations or denials of its answers. Rather, an opposing party W

must set forth specific facts showing that there is a genuine a

issue of fact. 10 C.F.R. 5 2.749(b); Houston Lichtina & Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-629, 13 N.R.C. 75, 78 (1981); Vircinia Electric and Power Co.

! (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 N.R.C. 451, 453 (1980). A party cannot avoid summary disposition on the basis of guesses or suspicions, or on the hope that at the hearing Licensee's evidence may be discredited or that "something may turn up." Gulf States Utilities Co. (River Bend Station, j

Units 1 and 2), LBP-75-10, 1 N.R.C. 246, 248 (1975).

t

,,y - , .- .__,..-,.v.-,, _ . , _ , - - , - _ - ,,-- - _. . . - +~3

4 In this case, where so much information on the issues has been made available to Joint Intervenors and the Board has pro-vided them with ample opportunity to develop a factual case, the burden Joint Intervenors must meet to defeat summary disposition should be strictly imposed. Beyond Ji :nt Intervonors' long fa-miliarity with the TMI-2 clean-up program,2# their knowledge of Licensee's evaporation proposal goes back to the submission to the NRC in July, 1986, of Licensee's report evaluating and recom-mending that disposal method. In December, 1986, the NRC Staff issued draft Supplement No. 2 to the PEIS, to address in detail the disposal of the Accident-Generated Water. Supplement No. 2 was made available in final form in July, 1987, before this pro-ceeding was initiated. Joint Intervenors then had from January 5 to March 15, 1988, to conduct discovery of Licensee and the Staff, and filed two sets of discovery requests aimed at each.

In addition, Licensee provided a detailed System Description for the evaporator disposal system, by counsel's letter of February 17, 1988. In this context, an evidentiary hearing should not be required unless Joint Intervenors successfully show that there is a genuine issue as to any fact material to their admitted conten-tions.

2/ See NUREG-0683, Programmatic Environmental Impact Statement related to decontamination and disposal of radioactive vastes re-sulting from March 28, 1979 accident at Three Mile Island Nuclear Station, Unit 2 (March 1981). This PEIS, which TMIA and SVA com-mented upon in draft form, addressed Accident-Generated Water disposal.

4

l Il

-III.- Partial Summary Disposition l

l The governing regulation permits summary disposition  !

". ,. as to all or any part of the matters involved in the pro- j ceeding." 10 C.F.R. S 2.749(a). Just as summary disposition may 1 1

be granted as-to some but not all contested issues, so may sum-i mary' disposition be granted as to one or more parts of an inter-  ;

I venor's contention. It is clearly appropriate for a Board to l 1

grant partial summary disposition of an issue, where such result is warranted. See, e.o., Houston Lichtino and Power Co. (South Texas Project, Units 1 and 2), LBP-86-15, 23 N.R.C. 595, 634 l l

(1986); Cleveland Electric Illuminatino Co. (Perry Nuclear Power j

Plant, Units 1 and 2), LBP-82-114, 16 N.R.C. 1909, 1913-18 1

(1982). The format or organizational style employed by the

! pleader of contentions should not prevent a licensing board from

! deciding that, as to discrete matters of fact and/or v, there )

is no genuine issue to be heard with respect to one os more as- 1 i pects or parts of a given contention. Thus, where summary dispo-sition may not be appropriate as to the whole of a given conten-

! tion, a licensing board may and should determine what issues within the contention are not genuinely disputed, and set only .

l l i disputed issues for trial, j Licensee submits that the four motions being filed are all meritorious and should be granted as a matter of law in their en-tirety. Each motion demonstrates that there is no genuine issue of material fact to be heard. If, however, the Board were to l l

l l

l l

l l

i

_t

-, conclude that Joint Intervenors have demonstrated that one or.

more genuine ~and material issues exist as to a given contention, .

the Board should exercise its authority to narrow the issues for trial by disposing of.those portions of contentions regarding >

which no genuine issue exists.  ;

IV. Schedule i From the outset of this proceeding, Licensee has urged expe-dition in the interest of completing the TMI-2 cleanup program.

Once more, we respectfully request the Board's earliest conside-ration and resolution of the Joint-Intervenors' contentions. Ab-  ;

'breviated rulings on the summary disposition motions -- communi-cated by telephone conference or brief memorandum, to be followed by a more detailed decision -- would help the parties plan for [

litigation and speed the start of that litigation. Gee Carolina l Power & Licht Co. (Shearon Harris Nuclear Power Plant),

! LBP-85-27A, 22 N.R.C. 207, 207-08 (1985). In the alternative, Licensee requests that if and when the Board decides to deny any i summary disposition motion in whole or in part, the Board promptly (in advance of issuing a memorandum and order on the mo- I i

( tions) set about scheduling and announcing the evidentiary

! f 6

i

_ _ _ _ _ . . _ . ___ .__ , _,.___, . _ -. - ._ __ _ . - . , - - - . . _ - - , _ _ ~

~v

'6 l

. hearing and the deadline for filing testimony and exhibits, so that the parties are put on ample' notice.

. Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE j Thomas A. Baxter, P.C.

David R. Lewis Maurice A. Ross Counsel for Licensee 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000' Dated: May 9, 1988 l

l i

l l

l

\

\

i