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C0:21ITTLE TO SP.Ir4E TE GAP                                                00CKETE0 USHRC 1637 3utler Avenue, Suite 203 Los Angeles, California 90025 (213) 478-0829                                                            2 SEP 22 A10:55 U;;ITED STATES OF MIEP.ICA                trrt ? N ' " -
I;UCLEAR REULATORY CCI:MISSIO:1              l' :  ~t LEM_RE THE ATOMIC SAFEIY M;D LICSISII:G BOARD, In the Hatter of                      )
                                                )                Docket I!o. 50-142 OL TE RIE;TS OF THE U!!IVERSITY          )
0F CALIE RITIA                        )                Proposed Renewal of
                                                )                  Facility License (UCLA Research Reactor)              )
                                                )
I'OTICII TO SUMMARILY DISMISS STAFF AllD APPLICA:iT MOTICI!S FOR SUiO:ARY DISPOSITION, OR ALTEPl!ATIVE RELIEF AS TO SAZE I. INTPDDUCTION Despite direction from the Board to the contrary, the Staff and Applicant have both moved for suriarf disposition as to ever/
contention in the above-captioned proceeding (except Energency Planning, which is not yet ripe for such action), as well as each and every subpart of said contentions. The motions are frivolous, harassing, a nisuse of the cum: arf disposition process which is designed to expedite proceedings, and a delaying tactic which can cause irreparable damage because of the unique situation of this case wherein the Applicant is permitted to continue the activities for which it has requested its license for as long as it can cana;;e to prevent the natter coming to hearing. Furthermore, responso to each and everf of said motions would divert very suostantial resources of CBG and the Board fron preparation for hearing. CBG thus moves the presiding officer to exercise his authority under 10 CFR 2.749 to summarily dismiss said notions. In the alternative, cer+h other 8209230329 820920 PDR ADOCK 05000 0
 
partial romodies are identified.
II. BACKGROTED This proceeding is unique in that the Applicant in this case is able to conduct the activities for which it has requested, but not yet been granted, a license until such time sa the Atomic Safety and Licensing Beard convened to rule on the application rules otherwise. Thus, there is a tremendous incentive for delay. In theory, at least, the UCLA reactor could operato through the perioa for which the Regents have requested renewal of the license without that license renewal ever being granted, so long as UCLA can prevent the matter from going to hoaring.
Such delays have characterized this proceeding. In March of 1960, the Board opened a discovery period which was to end three months thereafter, were all parties to meet their discover / obligations. However, such obligations were not obeyes , necessitating numerous Board Orders compelling compliance and numerous discovery conferences ordered by the Board to occur among the parties in efforts to move the proceeding forward.
It took a rull year to get even partial answers from NaC Staff to interrogatories, and the same time to have the Applicant finally comply in part to its discovery obligations.
In part to attanpt to expedito the proceedings, the Board convened on June 29 and 30, 1902, a prehearing conference designed to resolve any reaining discovery disputes and set a tentative date for hearing. At least twice during that prehearing conference, the Board, in extremely clear language, requested the parties not to move for summary disposition except on those few items "that are amenable to that pmcess that could be handled ver/ quickly." TR 535
 
t 3
Saying that the Board doesn't "lcok upon it [ disuse of summary disposition procedure _s] very kindly," tte presiding officer estimated that an extended smry disposition procedure would delay the hearing three to four months, and furthemore that the coard's decision "would be on a mich counder basis after an evidentiary hearing,"
gi ren tho detailed contentions and the wealth of discovery and infomation, much of which the Board has not been privy to. Ta 535 Swilar statements wore t.iie the following day of the conference, urging the parties "not to do this in a shotgun, bmadside fashion." TR 764                                                                    Ur. fortunately, that is precisely what the Staff and Applicant have done.
C3G took the Board's statements at the prohearing conferwice as 3oard direction, and therefore filed summary disposition.cotions only on those limited matters which, by admissions of the other parties, seemed to most clearly meet the standard of no genuine dispute about the material facts. Furthemore, in an effort to further expedite the proceeding and in absence of any indication from the other parties of an intention on their part not to comply with the Board's request, C33 vc.. untarily gave up its discovery rights as to the amendments to the Application (aside from the emergency plan), amendments which had only been povided the day before the prehearing conference.
Yet, despite the apparent acquiescence of Staff and the comments on the record by Applicant indicating compliance would be forthcoming widt-the Board's attempt to get the license application to hearing, the Staff                                                                  -
and Applicant in concert have moved for summary disposition on each of the score of contentions and each of *:he 140 or so subparts thereto.                                                                      ,
Failing to provide any indication of any selectivity or genuine belief that a particular matter is truly beyond factual dispute, the Steff and Applicant t
 
N have apparently decided they would rather risk the Board's displeasure over this delaying tactic than face the prospect of the matters at issue going tc, hearing in December or January, the time tentatively set by the Board, where evidence and witnesses of questionable probative value would be subject to thorough questioning by CEG,.the City of Santa Monica, and the Board.
Sumary disposition is designed to expedite proceedings by pemitting an early decision on matters where no genuine factual dispute exists and where such decision can be readily made on the, pleadings without
    . need for questioning of witnesses and weighing of evidence as at hearing.
It is not to be used to delay a proceeding, to attempt to overwhelm a financially weak opponent shortly before hearing by forcing suostantial diversion of resources nor is to be used as a means of " flight-testing" drafts of testimony for hearing, nor for trying to create a default by an opposing party inundated by the sheer weight of multitudinous summary disposition motions, nor for "shotgurining" in a hope that the moving party will get lucky on at least some of the items. Such an approach makes a mockery of the process, of a Board's authority to regulate a proceeding, and of the interests of justice, which are best served by a speedy trial and decisions based upon a full record, thoroughly examined by probing questions and careful weighing of the merits of opposing opinion and contradictory facts. Su==ary disposition. is only to be used in the opposite situation--where it will not divert substantial resources from preparation for hearing, where it will not cause an unjustifiable delay in that hearing, and most importantly, where there are no genuine disputes as to any material facts. Staff and Applicant clearly attempt to misuse the procedure.
 
Counsel for liRC Staff, as early as a year ago, made clear its intention to move for su= mary disposition as to each and every matter in dispute. At a discovery conference in San Francisco on November 24, 1981, which with permission of the parties was tape-recorded, Counsel for Staff indicated her intention to nove on all issues and to simply use drafts of proposed testimony for her affidavits. Indeed, several of the affidavits submitted in support of her motions are not even modified from draft testimony form--see Affidavit of trold Bernarti Regarding Contention X, for example, wherein at paragraph o ne says, "I prepared the F.nvironmental Impact Appraisal for the proposed renewal of the UCLA reactor license Msch I hereby adopt as my testimony." As Staff has already prepared its testimony, the natter would be most expedited and justice best served were the issues where there are clear disputes to go to hearing, where the affiants could be questioned. Using summary disposition as a means of ' flight-testing' drafts of testimony is inappropriate.        Furthermore, Counsel for Staff has in other cases where she represented Staff followed precisely the same course of moving for summary disposition on all <nntentions, hoping for a default from a financially weak intervenor unable to respond to an avalanche of such motions because of lack of time and financial resources.
      !!o pretense is even made that there are no factual disputes about any of the natters; the action is simply a harassing tactic.
In summary, CBG took the Boarc's statements at the prehearing conference as direction and complied; Staff and Applicant, silent as to other intentions when scheduling was discussed at that conference, have not complied and are attempting to delay the proceeding, divert CdG's resources from preparation for hearing, and to the extent permitted oy the Board, prevent matters from being heard in a hearing where cross-examination will occur. The Board's authority to regulate the proceeding i
 
is being challenged by Staff and Applicant, who have essentially said by their motions, so what if the Board has determined that the hearing should be in December or Januar/ and that sumarf disposition motions should only be made where they truly meet the standanis for such motions?
Staff and Applicant have essentially put all on notice that it is they who will control when (and perhaps even if) the disputes that are already three years old over get to nearing. That is, if their refusal to comply with Soard desires and summarf disposition standards is permitted.
III. THE RELIEF RKUE FED AlLD 4.LTEfdATIVE R2EDIES
: 1. The Staff and Aeolicant notions should be su~ari1Ldismissed as per 10 CFR 2_.14,2 The URC Rules of Practice provide that a presiding officer must sumarily dismiss sicr.ary disposition motions that occur shortly before a hearing when such motions would require a party and/or the Board to divert substantial resources from preparation for hearing. It should do so in this case.
The Board has set a tentative hearing date for sometime in December or Januarf. There is no way that CBG can possioly prepare
;      for that hearing and respond to the incredible stack of sumary disposition i
l    motions placed upon it.
That the hearing can be delayed does not resolve the problem; I      in this proceeding, because the facility continues to perfom the functions which the Board is mandated to detemine if they represent an unacceptable risk to public health and safety, a matter nct yet resolved because there has been no hearing, an unacceptable risk to public health and safety may result from such a delay. This is not the case in virtually any other licensing proceeding, where such a delay means inconvenience but no public health and safety threat.
 
Furthermore, were a party permitted to suspend a hearing date by nakfa nass of summary disposition motions, it would undermine aoard authority to regulate such proceedings and contravene the intent of the provisions of 10 CFR 2.749, because no such motions could be sumarily dismissed if the hearing date could constantly be put off in response to such notions.                                                    g The notions are frivolous. They consist of vague denials of naterial disputes in motions of only a couple of pages and even vaguer assertions in two page affidavits. No discrimination whatsoever has been employed by either Staff or Applicant to, as the doard directed, "do so on items that you feel you have got a very strong case for su= mary disposition." TR 536    Instead, blanket motions have been made, whether or not the parties genuinely believe a material dispute exists. This abute she.!d not be pemitted.
The parties have been given by the Board ample opportunity to nove for sumary disposition on those itens amenable to such a process and which meet the legal standards thereon. Staff and Applicant have failed to take advantage of that opportunity, and instead attempt to misuse it.
Even where their own evidence blatantly contradicts their own motions, the parties have had no hesitation to go forward. For example, the last two inspection reports for the UCLA reactor issued by the NRC Staff and the Notices of Violation thereon totally and completely contradict Staff and Applicant's positions on several contentions. They are scathing attacks on Applicant's knowledge of its own calibration techniques, failure to monitor correctly, failure to calibrate correctly, failure to have proper proceduros, failure of the UEL Director to be at the facility enough and to exercise his responsibilities regarding managerial and administrative controls. One of the reports, IE e c2-01, is perhaps the most blistering i
 
critique of a licensee's radiation control program ever to be found in such a report. Yet Counsel for Staff, representing in part the authors of that report and Notices of Violation, and Applicant, the subject of said report and violations, have both moved for su= mar / disposition as to the contentions dealing with radiation control program, mAministrative controls, calibration accuracy, and so on. Uo pretense whatsoever is made of selectivity, of discrimination of issues where there are genuine disputes as opposed to areas where the other parties might feel that their position on the disputed matters may be the stronger of two disputed po sitions. Summar/ disposition, of course, is not appropriate in the latter situation.
Thorofore, because of the tremendous drain of resources response to each and every of these motions would be to C30, taking away from its preparation for hearing shortly before said nearing is tentatively scheduled to commence, cts respectfully requests that the Board su=marily dismiss the motions, as mandated by 10 CFR 2.749.
A. ALTER'!ATIVE Rr.MEDIES
: 1. Defer Consideration of the Su= mar / Disposition Motions Should the Board determine it will not summarily dismiss said
: otions, CBG requests that the Board, exercising its authority to regulate scheduling, defer consideration of said motions and defer responses to said motions. The Board is not required to rule on said motions at any particular times in this case, it would be appropriate for the Board to defer consideration of such motions until such time as it views particular ones to be genuinely ripe for consideration, at which time it may direct C3G to respond to those e
notions viewed as ripe for such consideration.
 
_9 2    Simplify the summarf disposition process Should the Board deternine that the motions must be responded to now and considered raw, C3G respectfully requests the Board consider methods of reducing the burden to both CBG and the Boa:d. Although the motions are extremely flimsy, consisting of short generalizations asserting without substantive facts in the main that no genuine disputes exist, C3G cannot afford to risk matters being prevented from going to hearing by responding in a brief manner. This is the biggest burden imposed by Staff's and Applicant's misuse of the procedure: they can force, with extremely short notions (i.e. 2 pages per contention) that no material facts are in dispute, whereas CBG, to ensure the matters are given a hearing, must respond with extremely detailed argument, affidavits, and other documentary evidence. Staff and Applicant lose nothing if their motions are denied, so they have no disincentive to making vague, weak arguments, based on generalized assertions that there is no issue. C3G loses a great deal, however, if its responses are denied as proving that the matter should go to hearing. Therefore, as CBG indicated at the prehearing conference, C3G's responses to such motions are likely to be roughly thirty pages of response each and 70-100 pages of exhibits, for every contention. J30 will be faced with the burden, timewise and financially, of producing a several thousand page response, when all the exhibits and each of l
I      the contentions are taken together. And the Board will be faced with the burden of reading the material and making a judgment. Unlike =ost Intervenors, C3G has voluminous evidence of a documentar/ nature to present in this case, based on the fact that this reactor has an existing operating l      history (it is, of course, on the basis of that operating history that C3G has, in large measure, based its opposition to relicensing.) Unless some mechanism is provided to simplify response to su::: mary disposition, CSG will have to put into its responses the bulk of that documentar/ evidence, I
 
in order to protect what it has fought for so long, an opportunity to present that evidence to the Board in a public hearing and to demonstrate the flaws in opposing evidence and opinion through cross-examination.
The burdens of so doing will be 1:mense, to all concerned. The burdens could be reduced and the process simplified if it were in some fashion bifurcated.
Sumary disposition, when not abused, is designed as a . screening process. Sifurcation of the repponse process would pemit screening of those ex>tions, enabling CBG to make a threshhold showing as to the notions and pemitting the Board to detemine thereafter which of the contentions would require detailed and extensive sumar/ disposition responses.
In other words, let C3G nako acpreliminar/ showing in a way that reduces both Board and CEG burdens; the Board can then direct C3G to .d:e more detailed showing about thoso contentions and notions where additional            (
infomation vould be necessar/ for the soard's judgment as to whether thero e:d.st material disputes. 'the rights of Staff and Applicant nould be protected in that they would get what they have roqu3sted--a detemination by the Board as to whether certain issues should go to asaring.
And voluninous responses would only be necessarf as to those specific contentions and notions which tho Board detemined C3G had not not the threshhold showing in its prolininar/ response. Several alternative I
ways of doing this follow.
: a. Showing of Insufficiency in the IIotions Thaiselves Sumar/ disposition notions can be defeated in two ways by opposing facts and by the insufficiency of the notions the.selvos.
Even when no opposing facts are put for.tard, notions for su. nar/ disposition
 
_11 nust be denied if they are internally contradictory, if affiants' qualifications are not clearly consensurate with the testi=ony, if facts upon which assertions rely are missing. The vast bulk of the Staff and Applicant's notions can be summarily resolved on these bases alone. The Board could, under this alternative, pemit C3G to file pleadings demonstrating the insufficiency and contradictory nature of the notions; the Board could then direct affirmative responses to those portions of the =otions that cannot be resolved on such a basis alone.
: b. Response to the " central issue" identified by Applicant Applicant argues that one central theme runs through the entire proceeding, and that because there is, in its view, no factual dispute as to that natter, su=nar/ disposition should be granted as to the full case. That thene, Applicant asserts, is C3G's belief that an accident with serious off-site consequences is possible at the UCLA reactor.
Applicant contends it is not possible, and thus sumnary disposition should be granted as to all contentions based upon that prenise.
CSG could brief the arguments raised by Staff and Applicant I      and provide opposing evidence denonstrating that there are material disputes as to that natter. A finding by the Board that there is l
genuine dispute as to the potential and consequences of an accident at the facility could thus dispose of the bulk of the Sumnary Disposition motions, and any residual natters the Board could then direct C3G to respond to further.
i L
 
1 12-
: c. Convene a prehearing conference where CSG would orally outline those
;                        matters it views in dispute and what evidence it can put forward at hearing i                        that show there are such genuine disputes.as to the facts.
The biggest burden faced by CSG in providing full written responses with attached exhibits and affidavits as to each of the detailed contentions is.the sheer weight of producing such voluminous filings. The Board's
.                        burden in reviewing such filings would likewise be very great. Since l
the purpose of summary dispos 2. tion is to detemine if a party has evidence warranting a hearing, CBG respectfully suggests that the easiest way for all concerned, and perhaps the way in which the 3oad could make the most infomed' judgment, would be to convene a prehearing conference wherein C3G responds verbally to the summary disposition motions, identifying the facts, documents, witnesses and so on which, if a firm hearing date were kept to, it would put forth as evidence. This would permit the Board to detemine whether " live" issues of fact exist as a threshhold detemination. The Boad could ask questions during the presentation, which it could not with affidavits filed in written responses and any issue which, after such oral presentation, could not be determined f                        to have net the threshhold test, C3G would be directed to file detailed L
written responses to.
This would amount to a screening procedure, whereby the Board could detemine that certain matters, on the basis of the oral presentation alone, were in genuine disp 2te, and could order detailed written presentation l
on those remaining matters where such a threshhold detemination could not j                        be made.
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2    Extension of Time to Respond The Board gave C3G forty-five days to respond to what were anticipated to be only a ver/ few smeag disposition motions. The Board, at the prehearing conference, indicated that if C3G were inundated uith "a stack of motions" that that ti:ne frame would be modified.
C3G has been inundated with far nore than a stack of motions; both Staff and Applicant have filed motions with regards every single issue.
If the Board neither summarily dismisses the motions nor defers response and consideration, a major extension is necessarf.
C3G estimates, for the Staff's motions alone, approximately 1
one week would be required eer con _tention for the writing of each response.
This assumes no additional matters related to the proceeding intervene and does not account for the time necessary in working with affiants and acquiring necessar/ exhibits not already in hand. If one assumes only one week per motion, five months uould De needed for response, just for the Staff =otion. The Applicant's motions will take additional i
time.
!                              Thus, if the Board does not biltreate the process in some fashion, C3G respectfully believe a minimun of six additional months vill be needed to provide the full, voluminous responses necessar/ to thoroughly respond to the assertions made in the Staff and Applicant motions. This will, in addition to delaying the proceedings, cost C3G nearly half of its annual budget,.
'                            The Board indicated at the prehearing conference that a delay of l
three or four months would in all likelihood be necessitated by anything
'                  more than a ini al summar/ disposition procedure. The motions by Staff and Applicant will thus take suostantially longer to respond to.
CSG thus respect 1Mlly requests a six month extension if f
i
      --  , . . ~
 
14-bifurcation of response is not established as suggested above.
C3G uould attempt, because of its overriding interests in the proceeding coming to hearing, to respond in much less than that time, but the six month period seems at this point in time necessary.
Should bifurcation be pemitted along the lines indicated above, C3G respectfully requests six weeks from date of decision to so do in order to prepare its threshhold presentation. (Alternative                                "b",
responding to the " central issue" posed by Applicant, might take 1-2 weeks longer.)
: 3. Relief from Surden as to Exhibits One of the maj<r financial burdens, and to a certain extent, tine Durdens is the inclusion of extensive exhibits as attachments to each response. C3G notes Staff included no such exhibits in its motion, l
and Applicant only a few.
It uould reduce C3G's burden considerably, if oMered to l
fully respond to the entire sets of motions, for CBG to be able to cito documents relied upon without having to include copies of the relevant portions as attachments. The total size of the response uould likely be reduced by approximately 1500 pages, with commensurate financial savings and reduction in workload for CSG and the Board. Those documents cited uhich the Board wished to see directly and which were not already availaole at:IRC could be readily provided upon request.
I
!                                                            IV. CO:!CLUSIO::
C3G respectfully prays for relief in the foms identified above from the harassing, frivolous, extraordinarily and unduly burdonsome, notions by Staff and Applicant. Justice would be best sorved by the matters at issue in this proceeding getting to hearing expeditiously.
Pemitting such misuse of the procedure would cause irreparable damage
      ,e- w=                ,%-  yy,, -+y- -----y----+v--y*-      -y *        -w--      ,-+-4.. mu - , , . - - - - - . - - - -    e-- ywwgy-
 
to C3G's interests, perhaps to public health and safety, and undemines the aoility of the Board to regulate the proceeding as necessary.
C3G took the Board's h tenents at the last prehearing conference as diroction; the other parties have not; wnether intended as a oinding dirootion or not, sono relief is in order so that these natters thich have already dragged on several years can be resolved, and trith an adequate decisional record.
Lastly, C3G respectfully suggests the doard consider convening a conference call to hear responses to this notion froa the other parties and to issue a decision so as to avoid the delay that would otherwise be occasioned by having to wait for written responses.
                                                                        /
Resp e      y su    tt d, t
Daniel Hirsch Prosident C012m' TEE TO 3dlLG3 TH3 Gli
(      dated at Los Angeles, California                                        -
Septo-ber 20, 1982
 
UNITFD STAT 13 0F AMERICA NUCLEAR REGUuTCRY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BCARD In the Matter of Docket No. 50-142 THE RECENTS OF THE UNIVERSITY GP CALIFORNIA                                  (Proposed Renewal of l                                                      Facility License)
(UCLA Research Reactor)
,                                DECIARATION OF SERVICE I hereby declare that copies of the attached:        "0TTov TO SU WARILY I            DTS"T33 STAF? /CD APPLICATi' V0TIONS FOR S"GildtY DISPOSITIO'.i . UR
              'J T'"ATTE oTT 7 .iS TO S/ L in the above-captionai proceeding have been served on the following DY deposit in the United States anil, first class, postage prepaid, addressed as indicated, on this date: Sentenbar 20,19ts2                  .
John & Frye, III Chairman                    Christine Helwick Atomic Safety & Licensing Board              Clenn R. Woods l
U.S. Nuclear Re6ulatory Commission            Office of Ceneral Counsel 590 University Hall Dr. Emmeth A. Imebke                          2200 University Avenue Adminds trative Judge                        Berkeley, CA 94720 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission            Mr. John Bay Washington, D.C. 20555                        3755 Divisadero #203 San Francisco, CA 94123 Dr. Oscar & Paris Mainistrative Judge                          Sarah Shirley Atomic Safety and Licensing M                Deputy City Attorney U.S. Nuclear Regulatory Commission            City Hall Washingt<m, D.C. 20555 1685 Main Street Chief. Docketing and Service Section Office of the Secretary U.S. Nuclear Re6ulatory Commission Washin6t on, D.C. 20555 Counsel for NRC Staff U.S. Nuclear Re6ular,ory Commission Washington, D.C. 20555 attention: lA Colleen Woodhead i  ,
Villiam & Cormier                                        /
Office of Administ2ative Vice Chancellor University of California                                                  -
405 Hil6ard Avenue
                                                                    '[
Los An6eles, California 90024          -
President CCMMIT!ZE TO 3 RIDGE THE GAP
      ..          . - . - .      -- _ - - -. __}}

Revision as of 04:23, 31 March 2020

Motion to Dismiss NRC & Applicant Motions for Summary Disposition.Nrc & Applicant Motions Are Frivolous,Harassing Misuse of Summary Disposition Process & Can Cause Irreparable Damage.Certificate of Svc Encl
ML20065C317
Person / Time
Site: 05000142
Issue date: 09/20/1982
From: Hirsch D
COMMITTEE TO BRIDGE THE GAP
To:
Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8209230329
Download: ML20065C317 (16)
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