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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20063N7471982-10-0606 October 1982 Motion for Termination of Proceedings.Util Decided to Cancel Plant.Certificate of Svc Encl ML20063N7591982-10-0606 October 1982 Withdrawal of Application for CP ML20055A7221982-07-15015 July 1982 Memorandum & Order Denying Jf Doherty 820615 Submittals, Treated as Motion to Reconsider ASLB 820602 Order.Motion Untimely Filed & Failed to Show Significance or Gravity of Issues ML20055A3551982-07-12012 July 1982 Amended Contention 59.Certificate of Svc Encl ML20054L4521982-07-0202 July 1982 Response Opposing J Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Fails to Establish Timeliness &/Or Significance of Issues Sought to Be Raised.Certificate of Svc Encl ML20054L5531982-07-0202 July 1982 Response Opposing Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Should Be Considered Motion for Reconsideration of ASLB 820602 Order.Timeliness & Significance of Issues Not Established.W/Certificate of Svc ML20054J9371982-06-28028 June 1982 Response Opposing J Doherty 820615 Request to Reopen Record. Request Improper & Insufficient to Support Relief.Commission Rules Cannot Be Circumvented by Refiling Same Argument After ASLB Ruling Issued.Certificate of Svc Encl ML20054F9861982-06-15015 June 1982 Motion to Reopen Record to Take Evidence on Contention 59. Gravity of Issues Warrants Reopening ML20054G0171982-06-15015 June 1982 Contention 50 Re Brown & Root Deficiencies in Quadrex Rept. Certificate of Svc Encl ML20053D0861982-05-24024 May 1982 Response in Opposition to Util 820519 Motion to Strike Doherty Contention 58 Re Applicant Conduct on Reporting Violations.Contention Should Be Treated as Such,Not as Motion.Certificate of Svc Encl.Related Correspondence ML20052H8621982-05-19019 May 1982 Motion to Strike J Doherty Reply to Applicant 820507 Response to Doherty 820422 Motion to Add Contention 58. Commission Rules Do Not Allow Reply.Certificate of Svc Encl ML20052H4441982-05-14014 May 1982 Reply Opposing Applicant 820507 Response to J Doherty 820422 Motion to Add Contention 58.Contention Should Be Admitted W/Amends.Aslb Should Judge Conduct of Applicants. Certificate of Svc Encl ML20052F3121982-05-0707 May 1982 Response Opposing J Doherty 820422 Motion to Add Contention Re Alleged Failure to Rept Design Defects.Substantively, Motion Is Motion to Reopen Record & Stds Have Not Been Met. Certificate of Svc Encl ML20052D1221982-04-29029 April 1982 Findings of Fact on Supplemental Issues to Tx Pirg Addl Contention 31 Re Technical Qualifications.Certificate of Svc Encl ML20052A4541982-04-22022 April 1982 Submittal of Contention 58 Re Applicant Conduct on Reporting Violations at Plant.Certificate of Svc Encl ML20054E0561982-04-21021 April 1982 Supplemental Findings of Fact on Tx Pirg Addl Contention 31 Re Technical Qualifications.Certificate of Svc Encl ML20050J1111982-04-0606 April 1982 Answers to Second & Third Sets of Interrogatories,Questions 29 & 8 Respectively,Re Quadrex Rept.Certificate of Svc Encl. Related Correspondence ML20050E2961982-04-0505 April 1982 Answers & Objections to Seventh Set of Interrogatories. Certificate of Svc Encl.Related Correspondence ML20050E2891982-04-0505 April 1982 Answers & Objections to Doherty Sixth Set of Interrogatories.Related Correspondence ML20050C4211982-04-0202 April 1982 Objections to Request for Admissions.Requests Untimely, Irrelevant to Issues Before ASLB & Extremely & Unduly Burdensome.Certificate of Svc Encl.Related Correspondence ML20050C4081982-03-31031 March 1982 Answers & Objections to Fifth Set of Interrogatories. Certificate of Svc Encl.Related Correspondence ML20050C4791982-03-29029 March 1982 Answers & Objections to Jf Doherty Fourth Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters. Certificate of Svc Encl.Related Correspondence ML20042C6431982-03-29029 March 1982 Motion for ASLB to Call DE Sells as Witness for Tx Pirg Addl Contention 31 & Quadrex-related Matters.Testimony Needed to Explain Why NRC Did Not Immediately Obtain Quadrex Rept. Certificate of Svc Encl ML20042C6181982-03-29029 March 1982 Response Opposing J Doherty 820315 Motion for ASLB to Subpoena Quadrex Corp Employee Witnesses as ASLB Witnesses. Request Is Based on Misperception of Scope of Reopened Hearings.Certificate of Svc Encl ML20050C5091982-03-26026 March 1982 Response to Jf Doherty 20th & 21st Requests for Documents. Certificate of Svc Encl ML20050C5041982-03-26026 March 1982 Testimony of Lj Sas on Tx Pirg Addl Contention 31 Re Quadrex Rept.Rept Raises No Issue as to Whether Ebasco Can Properly Engineer Project.Prof Qualifications Encl ML20050C5011982-03-26026 March 1982 Supplemental Testimony of Jh Goldberg on Technical Qualifications.Brown & Root Terminates Due to Lack of Engineering Productivity,Not Due to Allegations in Quadrex Rept ML20049K0801982-03-25025 March 1982 Answers & Objections to Interrogatories.Certificate of Svc Encl ML20049K0671982-03-25025 March 1982 Reply to Tx Pirg 820315 Addl Proposed Findings of Fact & Conclusions of Law.Certificate of Svc Encl ML20042C5201982-03-25025 March 1982 Motion to Compel Discovery from Applicant & to Postpone Evidentiary Presentations at 820412 Hearings.Applicant Objections to Interrogatories Unsupported & Necessitate Hearings Be Delayed.Certificate of Svc Encl ML20049K0941982-03-23023 March 1982 Answers & Objections to Second Set of Interrogatories. Certificate of Svc Encl ML20049K0841982-03-23023 March 1982 Answers & Objections to Third Set of Interrogatories. Certificate of Svc Encl ML20042C5481982-03-23023 March 1982 Fourth Set of Requests for Admissions Re Quadrex Rept & Tx Pirg Contention 31.Certificate of Svc Encl ML20042B2351982-03-17017 March 1982 Seventh Set of Interrogatories Re Tx Pirg Addl Contention 31 & Quadrex Rept Matters.Certificate of Svc Encl ML20042A4791982-03-17017 March 1982 Response Opposing J Doherty 820310 Motion for Postponement of 820412 Hearings.Sufficient Grounds Not Provided to Justify Delay.Certificate of Svc Encl ML20042B2451982-03-15015 March 1982 Motion for Subpoena of Quadrex Corp Employees.Testimony Necessary for Clear Understanding of Brown & Root Deficiencies Despite Util Supervision & Specific Steps Needed to Correct & Prevent Problems.W/Certificate of Svc ML20042B2381982-03-15015 March 1982 Sixth Set of Interrogatories Re Tx Pirg Addl Contention 31 & Quadrex Rept Matters.Certificate of Svc Encl.Related Correspondence ML20041F0761982-03-10010 March 1982 Fourth Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Rept.Certificate of Svc Encl.Related Correspondence ML20041F0871982-03-10010 March 1982 Motion for Postponement of 820412 Hearing on Tx Pirg Addl Contention 31 & Quadrex-related Matters.Addl Time Needed to Complete Discovery.Certificate of Svc Encl ML20049J6571982-03-0808 March 1982 Answers to First Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters.Certificate of Svc Encl ML20041E1741982-03-0505 March 1982 Brief Opposing R Alexander Appeal from ASLB 820112 Order Denying Petition to Intervene.Aslb Did Not Abuse Discretion in Denying Petition.Certificate of Svc Encl ML20041E1201982-03-0505 March 1982 Motion for Order Directing Applicant to Provide Forthcoming Bechtel Quadrex Rept Review.Rept Pertinent to Remaining Issue.Certificate of Svc Encl.Related Correspondence ML20041E1181982-03-0505 March 1982 Third Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Rept Matters.Related Correspondence ML20041E1071982-03-0505 March 1982 First Set of Interrogatories & Request for Production of Documents Re Tx Pirg Contention 31.Certificate of Svc Encl ML20041E1001982-03-0505 March 1982 First Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl ML20041E0711982-03-0404 March 1982 Second Set of Interrogatories Re Tx Pirg Contention 21 & Quadrex Rept Matters.Certificate of Svc Encl.Related Correspondence ML20049H8881982-03-0101 March 1982 Response Opposing D Marrack 820213 Motion for Review of Dates for Reopening Hearings & Continuance.No Commission Regulations or Atomic Energy Act Provisions Require Applicant Irrevocable Commitment.Certificate of Svc Encl ML20041B5381982-02-22022 February 1982 Reply to Intervenors Proposed Findings of Fact & Conclusions of Law.Certificate of Svc Encl ML20041C0671982-02-22022 February 1982 Response Opposing Tx Pirg 820209 Motion for Addl Time to File Proposed Findings of Fact & Conclusion of Law.Motion Mooted by Tx Pirg Filing Proposed Findings on 820212. Certificate of Svc Encl ML20041B5421982-02-17017 February 1982 First Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters.Certificate of Svc Encl.Related Correspondence 1982-07-02
[Table view] Category:PLEADINGS
MONTHYEARML20063N7471982-10-0606 October 1982 Motion for Termination of Proceedings.Util Decided to Cancel Plant.Certificate of Svc Encl ML20054L4521982-07-0202 July 1982 Response Opposing J Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Fails to Establish Timeliness &/Or Significance of Issues Sought to Be Raised.Certificate of Svc Encl ML20054L5531982-07-0202 July 1982 Response Opposing Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Should Be Considered Motion for Reconsideration of ASLB 820602 Order.Timeliness & Significance of Issues Not Established.W/Certificate of Svc ML20054J9371982-06-28028 June 1982 Response Opposing J Doherty 820615 Request to Reopen Record. Request Improper & Insufficient to Support Relief.Commission Rules Cannot Be Circumvented by Refiling Same Argument After ASLB Ruling Issued.Certificate of Svc Encl ML20054F9861982-06-15015 June 1982 Motion to Reopen Record to Take Evidence on Contention 59. Gravity of Issues Warrants Reopening ML20053D0861982-05-24024 May 1982 Response in Opposition to Util 820519 Motion to Strike Doherty Contention 58 Re Applicant Conduct on Reporting Violations.Contention Should Be Treated as Such,Not as Motion.Certificate of Svc Encl.Related Correspondence ML20052H8621982-05-19019 May 1982 Motion to Strike J Doherty Reply to Applicant 820507 Response to Doherty 820422 Motion to Add Contention 58. Commission Rules Do Not Allow Reply.Certificate of Svc Encl ML20052H4441982-05-14014 May 1982 Reply Opposing Applicant 820507 Response to J Doherty 820422 Motion to Add Contention 58.Contention Should Be Admitted W/Amends.Aslb Should Judge Conduct of Applicants. Certificate of Svc Encl ML20052F3121982-05-0707 May 1982 Response Opposing J Doherty 820422 Motion to Add Contention Re Alleged Failure to Rept Design Defects.Substantively, Motion Is Motion to Reopen Record & Stds Have Not Been Met. Certificate of Svc Encl ML20042C6181982-03-29029 March 1982 Response Opposing J Doherty 820315 Motion for ASLB to Subpoena Quadrex Corp Employee Witnesses as ASLB Witnesses. Request Is Based on Misperception of Scope of Reopened Hearings.Certificate of Svc Encl ML20042C6431982-03-29029 March 1982 Motion for ASLB to Call DE Sells as Witness for Tx Pirg Addl Contention 31 & Quadrex-related Matters.Testimony Needed to Explain Why NRC Did Not Immediately Obtain Quadrex Rept. Certificate of Svc Encl ML20042C5201982-03-25025 March 1982 Motion to Compel Discovery from Applicant & to Postpone Evidentiary Presentations at 820412 Hearings.Applicant Objections to Interrogatories Unsupported & Necessitate Hearings Be Delayed.Certificate of Svc Encl ML20042A4791982-03-17017 March 1982 Response Opposing J Doherty 820310 Motion for Postponement of 820412 Hearings.Sufficient Grounds Not Provided to Justify Delay.Certificate of Svc Encl ML20041F0871982-03-10010 March 1982 Motion for Postponement of 820412 Hearing on Tx Pirg Addl Contention 31 & Quadrex-related Matters.Addl Time Needed to Complete Discovery.Certificate of Svc Encl ML20041E1201982-03-0505 March 1982 Motion for Order Directing Applicant to Provide Forthcoming Bechtel Quadrex Rept Review.Rept Pertinent to Remaining Issue.Certificate of Svc Encl.Related Correspondence ML20041E1741982-03-0505 March 1982 Brief Opposing R Alexander Appeal from ASLB 820112 Order Denying Petition to Intervene.Aslb Did Not Abuse Discretion in Denying Petition.Certificate of Svc Encl ML20049H8881982-03-0101 March 1982 Response Opposing D Marrack 820213 Motion for Review of Dates for Reopening Hearings & Continuance.No Commission Regulations or Atomic Energy Act Provisions Require Applicant Irrevocable Commitment.Certificate of Svc Encl ML20041C0671982-02-22022 February 1982 Response Opposing Tx Pirg 820209 Motion for Addl Time to File Proposed Findings of Fact & Conclusion of Law.Motion Mooted by Tx Pirg Filing Proposed Findings on 820212. Certificate of Svc Encl ML20041B5901982-02-13013 February 1982 Motion for Postponement of All Action on CP Application Until Applicant States That Util Irrevocably Committed to Building Plant If CP Received.Certificate of Svc Encl ML20040H0761982-02-0909 February 1982 Motion for 30 Addl Days to File Proposed Findings of Fact & Conclusions of Law.Length of Record Necessitates Extension. Decision Would Not Be Delayed Since Addl Hearings to Be Held in Apr 1982 ML20040E2781982-01-29029 January 1982 Requests for Clarification Re R Alexander 811130 Petition to Intervene.J Silberg 820122 Ltr Indicates That Order Denying Petition Issued,But No Order Has Been Served.Certificate of Svc Encl ML20039B7481981-12-17017 December 1981 Response Opposing Tx Pirg 811207 Motions for Addl Testimony, Further Development of Record & Admission of New Contention. Motion Superficial Attempt to Delay Proceeding & Totally Devoid of Merit.Certificate of Svc Encl ML20062M6441981-12-14014 December 1981 Response Opposing Doherty 811015 Renewed Motion for Addl Evidence on Tx Pirg Contention 31.Doherty Failed to Comply W/Aslb 811110 Order.Motion Is W/O Merit & Would Cause Unnecessary Delay.Certificate of Svc Encl ML20062M6241981-12-0707 December 1981 Motion for Tx Pirg to Present Addl Evidence,To Order Applicant to Serve Tx Pirg W/Quadrex Rept & to Rule That Need for Power Is Tx Pirg Contention.Alternatively,Requests Admittance as Tx Pirg Contention.W/Certificate of Svc ML20039B0771981-12-0707 December 1981 Renewed Motion for Addl Evidence on Tx Pirg Addl Contention 31 Re Applicant Technical Qualifications.Specifies Portions of Quadrex Rept,Indicating Organizational Changes That Should Be Made.Certificate of Svc Encl ML20038A8841981-11-20020 November 1981 Response Opposing Doherty 811106 Motion for Addl Testimony on Need for Power.Pleading Construed as Motion to Reopen Record.Burden of Explaining Why ASLB Would Reach Different Result Not Met.W/Certificate of Svc.Related Correspondence ML20010F4791981-09-0303 September 1981 Response Opposing Further Consideration of Radon Releases. NRC Analysis of Radon Releases in Final Suppl to Fes Satisfies NEPA Requirements,Complies W/Commission 780414 Order & Supplies Sufficient Info.Certificate of Svc Encl ML20010G1101981-09-0303 September 1981 Response to ASLB Request Re Positions on ALAB-640.Radon Emissions Determined by ALAB-640 Constitute Significant Addl Environ Impact.Certificate of Svc Encl ML20010A1171981-08-0505 August 1981 Motion to Strike Marrack Prefiled Testimony.Testimony Is Not Specifically Responsive to F Sanders 810205-06 Testimony. Certificate of Svc Encl.Related Correspondence ML20009B2031981-07-0707 July 1981 Response in Opposition to Intervenor Doherty 810622 Request for Leave to File Contention 57.No Good Cause Shown for Late Filing & No Specificity Provided.W/Science News Article & Certificate of Svc ML20005B3801981-06-22022 June 1981 Request for Leave to File & Submission of Contention 57 Re Vulnerability of Control Sys to Electromagnetic Pulses. Issue Has Not Been Made Public Until Recently.W/Certificate of Svc ML19347F4941981-05-0808 May 1981 Reply Opposing Doherty 810423 Filing Re Contention 56, If Filing Is Motion to Add Late Filed Contention. Contention Refs Alleged Problem at Browns Ferry Which Is Not Applicable to Mark III Containments.W/Certificate of Svc ML19347F4661981-05-0808 May 1981 Response Opposing Doherty 810423 Motion to Reopen Record on Need for Power Contention.Aslb Should Issue Order That Motion Is Moot & Direct Applicant to Update Testimony on Need for Power Testimony Later.Certificate of Svc Encl ML20003H9551981-04-29029 April 1981 Motion for Order Adopting Specific Procedures to Govern Conduct of cross-examination During Health & Safety Phase of Proceeding.Procedures Will Ensure cross-examination Not Cumulative.W/Proposed Order & Certificate of Svc ML19343D3891981-04-27027 April 1981 Motion to Strike I Bross 810331 Affidavit.Affidavit Does Not Respond to Ld Hamilton Supplemental Affidavits But Constitutes Personal Attack of Affiant.Certificate of Svc Encl.Related Correspondence ML20126J9451981-04-24024 April 1981 Motion Opposing Applicant 810422 Motion to Preclude Jm Scott Testimony.Tx Pirg & Intervenor Doherty Are Separate Parties ML20003H7981981-04-22022 April 1981 Motion for Addl Testimony & cross-examination on Conservation Techniques,Interconnection & Effects of Const Delay.Proceedings Have Not Addressed These Issues. Certificate of Svc Encl ML20003H7471981-04-22022 April 1981 Motion to Preclude Jm Scott Testimony.Intent of ASLB 810407 Order Was to Preclude Scott from Having Dual Role of Atty & Witness for Any Other Party.Certificate of Svc Encl. Related Correspondence ML20126H9601981-04-0707 April 1981 Request for Order Directing Util to Reissue 810331 Pleading W/Correct Title.Defective Title Did Not Put All Parties on Notice ML20126H9641981-04-0707 April 1981 Response in Opposition to Util & NRC 810330 Motions to Disqualify Tx Pirg Counsel,Jm Scott.Counsel Will Appear as Expert Witness.Public Interest Requires Counsel Presence. Certificate of Svc Encl ML19347D9721981-03-31031 March 1981 Response to NRC & Applicant Responses to J Doherty 810222 Motion for Reconsideration of Admission of Contention 21. Filing of Motion Was Timely Under Circumstances. Certificate of Svc Encl ML19345G4941981-03-30030 March 1981 Brief,In Form of Pleading,Addressing Need to Disqualify Tx Pirg Counsel Per Disciplinary Rules 5-101 & 5-102.Having Chosen to Appear as Witness,Scott Should Be Barred from Participation as Atty.Certificate of Svc Encl ML19345G5831981-03-24024 March 1981 Response for Order Allowing Intervenors to File Id Bross Supplemental Affidavit to Respond to Ld Hamilton Affidavit on Behalf of Util.One Day Delay Should Be Excused Due to Intervenor Attempt to Comply W/Rules.W/Certificate of Svc ML20003D2161981-03-0404 March 1981 Response Opposing Tx Pirg 810217 Motions on Procedural Matters,Referral of Interlocutory Appeal,Certification of Various Issues & Removal of Aslb.Motion Contains Misrepresentations of Alab Rulings.W/Certificate of Svc ML19341D4801981-02-25025 February 1981 Response to Intervenor Doherty Third Supplemental Response to Motion for Summary Disposition.Intervenor Has No Right to File Late Responses,Shows No Good Cause & Info Has No Relationship to Affected Contentions.W/Certificate of Svc ML20003C3161981-02-17017 February 1981 Requests to ASLB for Interlocutory Appeal & Certification of Questions & to ASLAP for Direct Certification of Question Re Ability of Intervenors to cross-examine Witnesses. Certificate of Svc Encl ML20003B0771981-02-0505 February 1981 Response in Opposition to Intervenor Jf Doherty Contention 55.Contention Does Not Address 10CFR2.714 Requirements & No Good Cause Established for Late Filing.Certificate of Svc Encl ML19345E8521981-01-30030 January 1981 Suppl to 810129 Motion Requesting Reversal of 810123 Ruling Denying Intervenor Rentfro cross-examination Opportunity.Evidence Supporting Intervenor Discernible Interest in Issues Outlined.W/Certificate of Svc ML19345E5721981-01-29029 January 1981 Requests ASLB Reconsider Ruling Restricting cross-examination,for Interlocutory Appeal & Certification of Questions.Also Moves Aslab for Directed Certification of Questions & Appointment of New Aslb.W/Certificate of Svc ML19341B6021981-01-29029 January 1981 Response Opposing Intervenor Doherty 810123 Motion to Change Cross Examination Procedures.Repetitious cross- Examination Would Be Avoided If All Intervenors Attended All Proceedings.Certificate of Svc Encl 1982-07-02
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UNITED STA'?ES OF AMERICA 4 t Q' ti ts y NUCLEAR REGULATORY COMMISSION Tg O #'O+ j 70er,7 ~
f6Tice BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of 9 9
HOUSTON LIGHTING & POWER S COMPANY S DOCKET NO. 50-466 9
(Allens Creek Nuclear S Generating Station, Unit S No. 1)
APPLICANT'S MEMORANDUM OF LAW IN SUPPORT OF RESPONSES TO INTERVENORS' MOTIONS FOR
SUMMARY
DISPOSITION On August 6, 1980, Intervenor TexPirg filed with this Board a motion for summary disposition in its favor on TexPirg Additional Contention 50. On September 16, 1980, Houston Lighting & Power Company (Applicant) received two additional, undated motions for summary disposition authored ,
by TexPirg with respect to TexPirg Contention 1 and Additional Contention 8. On September 11, 1980, Intervenor D. Marrack filed a motion for summary disposition on Marrack Contention 2(c).
Applicant now responds to these motions. Applicant will show that Intervenors' motions are legally insufficient to l support summary disposition and that, therefore, all should be denied in their entirety.
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8010140 Gh h
i ARGUMENT Intervenors' motions in each instance fail to present and support sufficient material facts to negate the existence of triable issues. The single question presented on a motion for summary disposition is whether the " relevant, material, and reliable evidence"1/ in the filings and/or affidavits produced in the proceeding "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."2/
Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A and 2B), ALAB-554, 10 NRC 15 (1979). Intervenors' motions are factually unsupported by admissible evidence of any nature. Moreover, even assuming that the unsupported lay opinions and hearsay citations raise some factual issues, the motions plainly fail to carry the burden of establishing that there is no genuine issue remaining for trial when the record is viewed in the light most favorable to the opposing party. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit No. 1), LBP-77-45, 6 NRC 159 (1977).
1/ 10 CFR S 2.743(c) 2/ 10 CFR S 2.749(d)
A. Lack of Evidence Intervenors fail entirely to meet the burden of submitting evidentiary support for their motions. The burden of establishing the facts necessary to justify summary disposition rests squarely'on the movant, and the opponer.t of the motion has no obligation to respond until the facts relied upon are convincingly proved. Adickes v. Kress & Co.,
398 U.S. 144 (1970). Thus, the Advisory Committee for the Federal Rules of Civil Procedure noted that "[w]here the evidentiary material in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented."3/
Movant's primary burden, consequently, is placing l
- sufficient admissible evidence into the record to show the total absence of a genuine controversy as to the determinative facts. E. P. Hinkel & Co., Inc. v. Manhattan Co., 506 F.2d 201 (D.C. Cir. 1974). In this case it is apparent that Intervenors have presented no admissible evidence as to any relevant facts and summary disposition should be denied l
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3/ Fed. R. Civ. Proc. 56, Notes of Advisory Committee on 1963 Amendment. Section 2.749 is patterned after Rule 56 of the Federal Rules of Civil Procedure. 37 Fed. Reg. 15127 (July 28, 1972).
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without further inquiry. Intervenors have either omitted affidavits in support of their conclusory arguments (TexPirg Contention 50 and Marrack Contention 2(c)) or have attached incompetent and unqualified opinions in affidavits executed i by persons without education, experience or training to testify about the matters in isnue.
- 1. The Affidavit.
Summary disposition motions are usually supported by affidavit, but affidavits are not required if other evidentiary materials are substituted. Thus, the federal rulesM and the NRC rulesb both recognize other evidentiary devices--depositions, interrogatory answers, etc.--as per-missible methods of submittrag the necessary proofs into the 4
record. But these alternatives to an affidavit do not excuse the fundamental requirement of presenting conclusive admissible evidence.
4/ See 6 Moore's Federal Practice $ 56.ll[2](2d ed. 1976).
5/ 10 C.F.R. 5 2.749(d) provides that :
The presiding officer shall render the decision sought if the filings in the 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 1 material fact and that the moving party is j entitled to a decision as a matter of law.
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I As a practical necessity the affidavit of an expert is almost always required in NRC proceedings in order to ' evaluate and explain data and support opinions addressing a complex mixture of technical and subjective issues. It follows that fragments of admissible evidence substituted for expert affidavits must be adroitly arranged to conclusively negate every material issue of controversy. Intervenors offer, instead, the inadmissible work product of laymen and, in the case of TexPirg Additional Conte'ntion 50, of counsel.
The bulk of fntervenors' " evidence" is expurgated, 3
out-of-context quotations and citations to scattered " scientific" and " technical" papers and books. Intervenors, presumably, believe that these citations and quotations amount to evidence; these are, in fact, not admissible evidence at all.
Rule 802 of the Federal Rules specifically excludes barren references of this type as hearsay. Rule 803(18) creates a narrow exception for a " learned treatise" used by expert witnesses.b! Intervenors, lacking such expert 6/ "The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or :
pamphlets on a subject of history, medicine, or other science l or art, established as a reliable authority by the testimony j or admission of the witness or by other expert testimony or -
by judicial notice. If admitted, the statements may be read i into evidence but may not be received as exhibits." ,
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witnesses to support their references, fail to qualify for the narrow exception.
The unsupported assertions by Intervenors and Tex Pirg's counsel in the " motions" and " statements of material facts" are also plainly inadmissible. These assertions are no more than unadorned argument and, like briefs or legal memoranda not in affidacit form, cannot be used as evidentiary support for summary disposition. Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975); Smith v. Mack Trucks, 505 F.2471248 (9th I
Cir. 1974).
- 2. Expert credentials.
As noted above, the most credible form of admissible i
evidence in technical litigation is the testimony of an expert witness. See Public Service Commission of New Hampshire 1
et al. (Seabrook Station, Units 1 and 2), LBP-76-4, 3 NRC 123 (1976). This preference exists because the credibility of conclusions drawn about technical and environmental issues relates primarily to theory and analysis of data.
Id. Consequently, the reliability of " evidence" adduced in an affidavit depends critically on the experience and training i
of the affiant to explain and support the conclusions. l Because the opportunity for a voir dire examination is lost, an affiant supporting motions for summary disposition must i
1 l
submit a clear statement of qualifications and experience or training which establishes the reliability of each and every interpretation and opinion presented. 10 CFR 52.749(b). If the interpretations and opinions are unreliable, they are inadmissible. 10 CFR 52.743(c).
As discussed more thoroughly in the individual responses to Intervenors' motions, the offer of " expert" testimony in these motions is for the most part totally unqualified and, hence. unreliable and inadmissible. The proffered " statements of qualifications" fail to detail or refine the vague and generalized assertions of " expertise" !
in relation to the very specialized and rigorous qualifi-cations required. These special qualifications are required to raise even a glimmer of reliability in testimony espousing sweeping conclusions about issues requiring both the careful consideration of myriad technical variables and subjective evaluation of conflicting evidence. Additionally, in many cases it is evident that the testimony strays beyond the outer-most boundary of the " expertise" claimed even if the assertions of qualifications are most liberally construed.
In these circumstances, the great majority of the testimony offered in these affidavits must be considered unqualified
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lay testimony which cannot be used to support the motions before the Board.
B. Insufficient Evidence r
Even if it is assumed, contrary to fact, that every assertion in Intervenors' arguments were supported by reliable evidence, these assertions in combination still do not deny the existence of all genuine issues in controversy.
In each and every case, as outlined in the individual responses, the Intervenors have~ failed to address material facts which cannot be ignored if the ultimate issues are to be pre-emptively decided. Intervenors' failure to recognize and address all material facts defeats their motions at the outset. Applicant has no burden to even present evidence on the omitted material facts. Cleveland Electric Illuminating Co. (Perry Nuclear dCower Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 752-54 (1977). Moore's Fed. Prac. S 56.15[3].
C. The NEPA Issues i
There is a category of cases where the nature of l the ultimate controversy essentially precludes a decision by summary judgment. This category includes cases where the relevant evidence is such that " conflicting inferences may be drawn therefrom, or if reasonably one might reach different conclusions." Pacific Gas and Electric Company, supra at l
165 (c.itation omitted). Conflicting inferences and reasonable l disagreements are nowhere more prevalent than in deciding the
cost-benefit balances required by the National Environmental Policy Act (NEPA).1/
NEPA requires an examination of reasonable alter-naiives to the construction and operation of a proposed nuclear facility if those alternatives hold the possibility of environmental superiority. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155 (1973). At the outset, however, there must be some basis for believing that the consideration of the proposed action and an alternative presents a realistic and cognizable choice involving "a significant environmental effect or . . . a controversy over the allocation of resources." Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-584, 11 NRC 451 (1980) (hereinafter "VEPCO"). Thus, it is unnecessary to engage in a NEPA examination if the alterna-tive is unrealistic (e.g., Metropolitan Edison Company, et al. (Three Mile Island Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39 (1978)) or if the proposal poses no significant environmental impact (e.g. VEPCO, supra). In either of the latter two situations summary judgment may indeed be appropriate because there is no material issue to be litigated at trial.
7/ 42 U.S.C. S 4321-4361
_9_ . .
Summary disposition is categorically inappropriate, however, if it is necessary to reach a decision on a cost-benefit balance. It is unsuited because in order to reject the applicant's proposal, it would have to be determined both that (1) at least one of the alternatives was environmentally superior; and (2) that environmental superiority was not outweighed by other considerations such as comparative costs:
VEPCO, supra at 458 (emphasis in original). It is virtually impossible to determine whether a claim of environmental superiority is outweighed oy other considerations on summary disposition. First, the proponent of such a course would have to conclusively establish the weight attached to all other considerations which is a very difficult task that was not even attempted by the Intervenors.8/ Secondly, the proponent would have to prove that there is only one possible i balance that can be struck in light of all the material l 1
facts. The likelihood that a few pages in a qualified I l
I affidavit could preclude any other outcome in a complex decision fundamentally relegated to the agency's reasoned l discretionE/ is obviously infinitesimal. Summary disposition will not lie in these circumstances.
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8/ Significantly, the Intervenors do not even address these other considerations. See Applicant's individual l responses. )
9/ Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d I 1109, 1115 (D.C. Vic. 1971), cert. denied, 404 U.S. 942 (1972).
CONCLUSION To succeed on motions for summary disposition, Intervenors must present reliable evidence. This reliable evidence must convincingly establish that all material facts lead to only one conclusion. This conclusion itself cannot be susceptible to reasonable disagreements nor rest on conflicting. inferences. Intervenors have failed in each and every one of the tasks. Accordingly, their motions for summary disposition must be dismissed.
Respectfully submitted, M
OF COUNSEL: J Grego pelahd Thom @gB @fddle, Jr.
BAKER & BOTTS Ia rell Hancock
,3000 One Shell Plaza 2 00 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELRAD & TOLL Robert H. Culp 1025 Connecticut Ave., N.W. David B. Raskin Washington, D. C. 20036 1025 Connecticut Ave., N.W.
Washington, D.C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY CB:08:C
a .
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY __AND LICENSING BOARD In the Matter of S S
HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 S i (Allens Creek Nuclear Generating S Station, Unit 1) S l
CERTIFICATE OF SERVICE l
I hereby certify that copies of the foregoing ,
Apolicant's Memorandum of Law in Support of Responses to '
Intervenors' Motions for Summary Disposition in the above-c ptioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 2nd day of October, 19CO.
Sheldon J. Wolfe, Esq., Chairman Hon. Charles J. Dusek !
Atomic Safety and Licensing Mayor, City of Wallis Board Panel P. O. Box 312 U.S. Nuclear Regulatory Commission Wallis, Texas 77485 i Washington, D. C. 20555 Hon. Leroy H. Grebe Dr. E. Leonard Cheatum County Judge, Austin County Route 3, Box 350A P. O. Box 99 )
Watkinsville, Georgia 30677 Bellville, Texas 77418 '
Mr. Gustave A. Linenberger Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Mr. Chase R. Stephens Atomic Safety and Licensing Docketing and Service Section Appeal Board i Office of the Secretary U.S. Nuclear Regulatory '
of the Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Susan Plettman Richard Black David Preister Staff Counsel Texas Attorney General's Office U.S. Nuclear Regulatory <
P. O. Box 12548, Capitol Station Commission )
Austin, Texas 78711 Washington, D. C. 20555 l
P v
Bryan L. Baker Brenda McCorkle 1118 Montrose 6140 Darnell Houston, Texas 77019 Houston, Texas 77074 J. Morgan Bishop W. Matthew Perrenod 11418 Oak Spring 4070 Merrick Houston, Texas 77043 Houston, Texas 77025 Stephen A. Doggett F. H. Potthoff P. O. Box 592 7200 Shady Villa, No. 110 Rosenberg, Texas 77471 Houston, Texas 77055 John F. Doherty Wayne E. Rentfro 4327 Alconbury P. O. Box 1335 Houston, Texas 77021 Rosenberg, Texas 77471 4
Carro Hinderstein William Schuessler
'609 Fannin, Suite 521 5810 Darnell Houston, Texas 77002 Houston, Texas 17074 D. Marrack James M. Scott 420 Mulberry Lane 13935 Ivy Mount Bellaire, Texas 77401 Sugar Land, Texas 77478
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J Grego eland i
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