ML20024E919

Memorandum of Law Supporting Util Motions for Summary Disposition of Eddleman Contentions 64(f),75,80 & 83/84. Certificate of Svc Encl.Related Correspondence

ML20024E919
Person / Time
Site:	Harris
Issue date:	09/01/1983
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20024E900	List: ML20024E899 ML20024E903 ML20024E906 ML20024E910 ML20024E915 ML20024E916 ML20024E917 ML20024E919
References
ISSUANCES-OL, NUDOCS 8309070212
Download: ML20024E919 (10)

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September'1, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CAROLINA POWER & LIGHT-COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401'OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power )

Plant, Units l'and 2) )

APPLICANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTIONS FOR

SUMMARY

DISPOSITION ON INTERVENOR WELLS EDDLEMAN CONTENTIONS 64(f), 75, 80 AND 83/84 I. Introduction Contemporaneously herewith, Applicants Carolina Power &

Light Company and North Carolina Eastern Municipal Power Agency filed four motions with the Atomic Safety and Licensing Board seeking summary disposition, pursuant to 10 C.F.R. 5 2.749, of Contentions 64(f), 75, 80 and 83/84, which were advanced by In-tervenor Wells Eddleman.1/ In order to avoid repetition, Ap-l plicants set forth in this single memorandum of law the general 1/ The motions on Contentions 64(f) and 80 accompany this memorandum. Applicants' motions with respect to Contentions 75 and 83/84 are being filed under separate cover.

8309070212 830901 PDR ADOCK 05000400 O PDR

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W-standards by which motions for summary disposition are to be decided.

II. Timeliness The motions for summary disposition of Eddleman Conten-tions 75, 80 and 83/84 are filed pursuant to the Board's Memo-randum and Order (Reflecting Decisions Made Following Second Prehearing Conference) at 6-(March 10, 1983), which established September 1, 1983 as the last day for filing motions for summa-ry disposition with respect to these environmental contentions.

Consequently, the motions clearly are timely filed. Further, the motions are ripe for decision by the Board, notwithstanding the fact that motions to compel discovery of Applicants have been filed by Mr. Eddleman and'are pending before the Board.2/

Discovery has been open on these contentions since September 22, 1982, when the Board admitted them for adjudication. Mr.

Eddleman was advised on January 6, 1983 that Applicants would seek summary disposition of these contentions, so that failure to pursue discovery was at his own risk. See letter to the Board from Applicants' counsel, January 14, 1983, with attached meeting minutes.

While Applicants could have filed their motion on Conten-tion 64(f), a safety contention, at a later time, discovery on 2/ No outstanding discovery requests otherwise are pending with respect to these contentions.

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-that' contention likewise'has been available for almost one. year and, for the reasons stated'in the motion,'it is ripe for.deci-sion by the Board.

Therefore, the existence of discovery disputes on_these contentions is entirely a situation created by Mr. Eddleman, and from which he should not be allowed to profit by forestall-ing the Board's consideration of timely motions for summary disposition.3/

III. Governing Legal Standard 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 bacis and rele-vance. A hearing on an admitted contention, however, is not inevitable. Licensing boards are authorized to decide an ad-mitted 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 in-volved 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 3/ In addition, we note that only a handful of interrogatories are at issue.

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• proceeding, depositions, answers to interrogatories, and-admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law." 10 C.F.R. $ 2.749(d).

The Commission and its adjudicatory boards have long encouraged the use of this summary disposition process where the proponent of a contention has failed to establish that a genuine issue exists, so that evidentiary he'aring time is not unnecessarily devoted to such-issues. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452, 457-(1981); see also Houston Lighting and Power Company (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 reslity as well as in theory, an efficacious means of avoiding unnecessary 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 Company (Joseph M. Earley Nuclear Plant, Units 1 and 2),

ALAB-182, 7 A.E.C. 210, 217 (1974); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-554, 10 N.R.C. 15, 20 n.17 (1979). Where, as here, motions for sum-mary disposition are properly supported pursuant to the 7_

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Commission's' Rules.of Practice, a party opposing the' motions may notLrest upon the-mere allegations.or denials of its answers. Rather, an' opposing-party must set forth' specific facts showing that there is a genuine issue of fact. 10 C.F.R. 5 2.749(b). A party cannot avoid summary disposition ~on the basis of guesses or suspicions, or.on the hope that at the hearing Applicants' evidence may be discredited or that "some-thing may' turn up." Gulf States Utilities Company (River Bend.

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

.The governing regulation permits summary disposition-

". . . as to all or any part of the matters involved in the proceeding." 10 C.F.R. $ 2.749(a). Just as summary disposi-tion may be granted as to some but not all contested issues, so may summary disposition be granted as to one.or more parts of an intervenor's contention. The format or organizational style employed by the pleader of contentions should not prevent a li-censing board from deciding that, as to discrete matters of fact and/or law, there is no genuine issue to be heard with respect to one or more aspects or parts of a given contention.

Thus, where summary disposition may not be appropriate as to the whole of a given contention, a licensing board may and should determine what issues within the contention are not gen-uinely disputed, and set only disputed issues for trial.

Applicants submit that the four motions filed contempora-neously are all meritorious and should be granted as a matter of law in their entirety. Each motion demonstrates that there i

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11s no genuine issue of material fact to be heard. If, however, the Board.were to be of the view that Mr. Eddleman has demon-strated that one or more genuine 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-conten-tions regarding which no genuine issue exists.

Respectfully submitted, Thomas A. Baxter, P'.C.

John H. O'Neill, Jr.

SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090 and Richard E. Jones Samantha F. Flynn CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: September 1, 1983

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September 1, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD' In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that c6 pies of the documents listed on the attached " Document List" were served this 1st day of September, 1983 by deposit in the United States mail, first class, postage prepaid, to the parties on the attached Service List.

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hn HI O'Neill, Jr.

Dated: September 1, 1983 I

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p DOCUMENT LIST

1. Applicants': Memorandum of Law in Support of Motions for. )

Summary Disposition on Intervenor Wells Eddleman Con-tentions 64 (f) , 75, 80 and 83/84

2. Applicants' Motion for Summary Disposition of Intervenor Wells .Eddleman's Contention 64 (f) (Spent Fuel Shipping :

Cask. Pressure Relief Valve)

3. Applicants' Statement of Material Facts As~To Which There Is No Genuine Issue To Be Haard on Intervenor Wells Eddleman's Contention 64 (f) (Spent Fuel Shipping Cask Prsssure Relief Valve)

4. Affidavit of Louis H. Martin in Support of Summary' Disposition of Intervenor Wells Eddleman's' Contention 64 (f)

5. -Applicants' Motion for Summary Disposition of Intervenor Wells Eddleman's Contention 80 (Atmospheric Dispersion Model)

6. Applicants' Statement of Material Facts as to Which There is No Genuine Issue to Be Heard on Eddleman Contention 80

7. Affidavit of Wayne Lei in Support of Applicants' Motion for Summary Disposition of Intervenor Wells Eddleman's Contention 80

8. Affidavit of Brian McFeaters in Support of- Applicants' Motion for Summary Disposition of Intervenor Wells Eddleman's Con-tention 80 I

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UNITED STATES'0F AMERICA ~

NUCLEAR REGULATORY COMMISSION :

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In-the Matter-of -)

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos.-50-400 OL and NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Commission 307 Granville Road Washington, D.C. 20555 Chapel Hill, North Carolina' 27514 Mr. Glenn O. Bright . M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Commission Post Office Box 12607 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D.C. 20555 Mr. Wells Eddleman Charles A. Barth, Esquire (4) 718-A Iredell Street Myron Karman, Esquire Durham, North Carolina 27705 Office of Executive Legal Director U.S. Nuclear Regulatory Commission Richard E. Jones, Esquire Washington, D.C. 20555 Vice President and Senior Counsel Docketing and Service Section (3) Carolina Power & Light Company Office of the Secretary Post Office Box 1551 U.S. Nuclear Regulatory Commission Raleigh. North Carolina 27602 Washington, D.C. 20555 j Dr. Phyllis Lotchin Mr. Daniel F. Read, President 108 Bridle Run Cil ANGE7EEP * '. * '

Chapel Hill, North Carolina 27514 5 7 0L7 .Way.r r oae SS t r e e t Ra l'origh, No.rth. Carolina 27606 Dr. Linda Little Governor's Waste Management Board i

513 Albemarle Building 325 North Salisbury Street l

Raleigh, Nonth Carolina 27611 l ..

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, s Service List Page Two Bradlef W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Ruthanne G. Miller, Esquire Atomic Safety and Licensing Board Panel ~

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robeer P. Cruber Executive Director Public Staff - NCUC Post Office Box 991 Raleigh,, North Carolina 27602 l

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