ML20094J281

Memorandum of Law in Support of Motions for Summary Disposition of Intervenor Contentions (B) & (D). Certificate of Svc Encl.Related Correspondence

ML20094J281
Person / Time
Site:	Turkey Point
Issue date:	08/10/1984
From:	Bauser M FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER, STEEL, HECTOR & DAVIS
To:
Shared Package
ML20094J050	List: ML20094J042 ML20094J065 ML20094J088 ML20094J123 ML20094J194 ML20094J226 ML20094J260 ML20094J281
References
84-496-03-LA, 84-496-3-LA, LA, OLA-1, NUDOCS 8408140277
Download: ML20094J281 (8)

Text

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i REl.ATED C0rESPONDENCE ED Sf5k'c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ag4 E 0 1 3 p;; gg BEFORE THE ATOMIC SAFETY AND LICENSING BOAR ((f CE r ERAncpf"U

)

In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 OLA-1

) 50-251 OLA-1

)

(Turkey Point Plant, ) ASLBP No. 84-496-03 LA Units 3 and 4) )

)

LICENSEE'S MEMORANDUM OF LAW IN SUPPORT OF MOTIONS FOR

SUMMARY

DISPOSITION OF INTERVENORS' CONTENTIONS (b) and (d)

I. Background Following a prehearing conference on February 28, 1984, the Licensing Board in this proceeding issued a Prehearing Conference Order (May 16, 1984) . The Order, inter alia, admitted petitioners Center for Nuclear Responsibility, Inc. , and Joette Lorion as Intervenors in this proceeding and accepted the petitioners' contentions (b) and (d).

Licensee Florida Power & Light Company (Licensee or FPL) is today filing two motions, pursuant to 10 C.F.R.

s 8408140277 840810 PDR ADOCK 05000250 0 PDR

i S 2.749, requesting summary disposition of those contentions (b) and (d). 1 Each motion is accompanied by Licensee's

" Statement of-Material Facts as to Which There Is No Genuine Issue To Be Heard" with respect to the pertinent contention.

This Memorandum of Law addresses the applicable standards under NRC authorities for determining whether to grant motions for summary disposition.

II. Summary Disposition Under NRC Regulations Admission of an intervenor's contention in an NRC proceeding carries no connotation regarding its merit--or lack thereof. If a contention meets the requirements of 10 C.F.R. S 2.714 as interpreted in NRC case law, it is admitted.

A ruling that a contention is admissible determines only that a contention is relevant to the proceeding, is stated with specificity, and has an identified basis. The intervenor is given the opportunity to prove the truth of the assertions supporting his or her admitted contention although not neces-sarily in an evidentiary hearing. Houston Lighting and Power Co.

1 Section 2.749 of the NRC's regulations states that motions for summary disposition are to be filed "within such time as may be fixed by the presiding officer."

However, as is clear from the Statement of Considerations accompanying promulgation of the regulation, the Commis-sion intends to permit such motions to be filed "at any time," subject to the Board's authorits to set time limits " tailored to fit the circumstances" of the particular case and to " dismiss summarily" motions filed shortly before or during the hearing if responding would require diversion of substantial resources by the Board or other parties. 46 Fed. Reg. 30,328, 30,330 (1981).

s (Allens Creek Nuclear Generating Station) , ALAB-590, 11 NRC 542, 549-50 .(1980).

After contentions have been admitted, any party may request that the. licensing board decide "all or any part of the matters involved in the proceeding" in the party's favor. 10 C.F.R. S 2.749(a) (1984). Such a motion must be accompanied by "a separate, short and concise statement of the material facts as to which . . . there is no genuine issue to be heard." Id. Any other party may support or oppose the motion. If it opposes the motion, a party must file its own statement of the material facts as to which it contends there is a genuine issue to be heard. Material facts are deemed to be admitted unless controverted by the opposing party. Id.

Not only do NRC regulations permit motions for summary disposition, the Commission has in fact exhorted licensing boards to encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so that evi-dentiary hearing time is not unneces-sarily devoted to such issues.

Statement of Policy on Conduct of Licensing Proceedings, 13 NRC 452, 457 (1981). -The Appeal Board has also endorsed the use of summary disposition as "an efficacious means of avoiding unnecessary and possibly time-consuming hearings on

demonstrably unsubstantial issues." Houston Lighting and

~ Power Co. (Allens Creek Nuclear Generating Station), ALAB-590, 11 NRC 542, 550 (1980); Gulf States Utilities Co.

(River Bend Station), ALAB-183, 7 AEC 222, 228 (1974).

III. Applicable Legal Standard The regulation states:

The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admis-sions on file, together with the state-ments 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. S 2.749(d) (1984). Section 2.749 and the standard--

"no genuine issue as to any material fact"--are similar to the standard under Rule 56 of the Federal Rules of Civil Procedure. Tennessee Valley Authority (Hartsville Nuclear Plant), ALAB-554, 10 NRC 15, 20 n.17 (1979) (relying upon Wright and Miller, Federal Practice and Procedure (1973),

Vol. 10, p. 377 and cases cited therein); Cleveland Electric Illuminating Co. et al. (Perry Nuclear Power Plant), ALAB-443, 6 NRC 741, 753-54 (1977).

If a party opposes the requested summary disposition, he must answer, setting forth " specific facts showing that there is a genuine issue of fact." 10 C.F.R. S 2.749(b)

(1984). It will not be sufficient to rest upon mere alle-gations or denials. Id. ; Houston Lighting and Power Co.

f

O ,

(Allens Creek Nuclear Generating Station), ALAB-629, 13 NRC 75 (1981); Duke Power Co. et al. (Catawba Nuclear Station) ,

LBP-83-56, 18 NRC 421, 430 (1983). "The opposing party's facts must be material, substantial, not fanciful, or merely suspicious. " Gulf States Utilities Co. (River Bend Station),

LBP-75-10, 1 NRC 246, 248 (1975) (footnotes omitted).

We submit that Licensee's motions and supporting statements filed today discharge Licensee's burden of proof and establish that there are no genuine issues of material fact to be tried and decided in connection with Intervenors' Contentions (b) and (d). In our view, because of the nature of the contentions and matters involved, Intervenors will be unable to discharge their responsibility to " set forth specific facts showing that there is a genuine issue of fact." 10 C.F.R. S 2.749(b); Virginia Electric and Power Co.

(North Anna Nuclear Power Station), ALAB-584, 11 NRC 451, 453 (1980).

Intervenors cannot be permitted to drag the Board and parties to a pointless trial "on the vague supposition that something may turn up." Gulf States Utilities Co. (River Bend Station), LBP-75-10, 1 NRC 246, 248 (1975). When viewed in light of the record, there will be no doubt but that contentions (b) and (d) are "' demonstrably unsubstantial issues' that should be decided pursuant to summary disposi-tion procedures in order to avoid unnecessary and possibly time-consuming hearings." Louisiana Power & Light Co.

(Waterford Steam Electric Station), LBP-81-48, 14

O 6

NRC 877, 883 (1981), citing Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station), ALAB-590, 11 NRC 542, 550 (1980). It will remain only for the Board to apply the relevant legal principles and grant each motion in its entirety.'

IV. Conclusion Based on the foregoing, and the accompanying Motions for Summary Disposition and Statements of Material Facts as to Which There Is No Genuine Issue To Be Heard, FPL res-pectfully submits that the Board should summarily dispose of Inte rvenors ' Contentions (b) and (d), and issue a decision in Licensees' favor.

Respectfully submitted, 24^:%

Harold F. Reis Michael A. Bauser Steven P. Frantz Of Counsel:

Newman & Holtzinger, P.C.

Norman A. Coll 1025 Connecticut Avenue, N.W.

Steel, Hector & Davis Washington, D.C. 20036 4000 Southeast Financial (202) 863-8400 Center Miami, FL 33131-2398 (305) 557-2800 DateU: August 10, 1984 2

We note that NRC regulations permit the Board to grant summary disposition "as to all or any part of the matters involved in the proceeding." 10 C.F.R.

S 2.749 (a) (1984). If the Board identifies some issues within a contention which must be tried, we request that the Board grant summary disposition as to the other issues.

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t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DCLHETED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'84 ASO 13 All:49 1

)

In the Matter of ) Docket [Nh.[54QS OLA-1

) sp){-is$ 'OLA-1 FLORIDA POWER AND LIGHT COMPANY )

) ASLBP No. 84-496-03 LA 5

(Turkey Point Nuclear Generating )

Units 3 & 4) )

)

CERTIFICATE OF SERVICE i

4 I I hereby certify that copies of (1) Licensee's Motion l for Summary Disposition of Intervenors' Contention (b);

(2) Licensee's Statement of Material Facts as to which There

, Is No Genuine Issue To Be Heard with respect to Intervenors' Contention (b); (3) Licensee's Motion for Summary Disposition 4 of Intervenors' Contention (d); (4) Licensee's Statement of

Material Facts as to which There Is No Genuine issue To Be

{ Heard with respect to Intervenors' contention (d); and (5)

Licensee's Memorandum of Law in Support of Motions for

Summary Disposition of Intervenors' contentions (b) and (d),

i all dated August 10, 1984, were served on the following by deposit in the United States mail, first class, postage pre-paid and properly addressed, on the date shown below.

Dr. Robert M. Lazo, Chairman

Atomic Safety and Licensing Board Panel i U.S. Nuclear Regulatory Commission

, Washington, D.C. 20555 i Dr. Emmeth A. Leubke Atomic Safety and Licensing Board Panel l

< U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i

Dr. Richard F. Co?e Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4.

,_____,_,-_..--.,m, . .., - ,, _ ,,,__ - . - - _ , . _ . - . _ - , - - - - - . . , _ - - - - . . , _ . _

t Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section (originals plus two copies)

Colleen P. Woodhead, Esq.

U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C. 20555 Mitzi A. Young, Esq.

Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Norman a. Coll, Esq.

Steel, Hector & Davis 4000 Southeast Financial Center Miami, FL 33131-2398 Martin H. Hodder, Esq.

1131 N.E. 86th Street Miami, FL 33138 Dated this 10th day of August 1984.

l rr%

Michael A. Bauser Newman & Holtzinger, P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Telephone: (202) 862-8400 b

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