ML19210E841
| ML19210E841 | |
| Person / Time | |
|---|---|
| Site: | Fort Calhoun  |
| Issue date: | 11/19/1979 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912130074 | |
| Download: ML19210E841 (5) | |
Text
11/19/79 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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OMAHA PUBLIC POWER DISTRICT
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Docket No. 50-285
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l (Fort Calhoun Station, Unit 1)
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y NRC STAFF'S RESPONSE TO MOTION TO STRIKE APPLICANT'S ANSWER I.
INTRODUCTION On October 30, 1979, the Naturr.1 Resources Committee of the Citizens Advisory Board of the Metropolitan Area Planning Agency and Alan H. Kirshen, acting individually (hereinafter referred to as " Petitioners"), filed a motion to strike Omaha Public Power District's (Applicant) answer to Petitioners' requests for hearing in the captioned proceeding.~1/ Petitioners' motion to strike is based on the claim that Applicant, in its answer, has failed to comply with the requirements of 10 CFR a 2.705 and that the attorneys who filed Applicant's answer may not have been authorized by the Applicant to do so.
For the reasons set forth below, it is the NRC Staff's (Staff) position that Petitioners' motion should be denied.
II.
NRC STAFF'S RESPONSE Petitioners assert that Applicant's answer to the requests for hearing does not comply with 10 CFR 5 2.705 in that it fails to state any of the matters recuired by that section and instead is a substantive argument against the requests for 1/
Petitioners' requests for hearing were filed on October 9, 1979. Applicant's Consolidated Answer to the requests for hearing, which is the subject of the instant motion, was filed on October 23, 1979.
1543 003 912130 094 G
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hearing.
In so asserting, Petitioners misapprehend the thrust of section 2.705.
Subsection (a) of section 2.705 provides in part:
(a) Within twenty (20) days after service of the notice of hearing, or such other time as may be specified in the notice of hearing, a party may file an answer.
(e=phasis added).
The plain language of section 2.705(a) makes it clear that the " answer" referred to is an answer to the notice of hearing itself and that such answer is to be filed, if at all, af ter service of the notice of hearing.
In the instant pro-ceeding, no notice of hearing has been issued by the Licensing Board and, in fact, none will be issued unless and until it is determined that a hearing will be held. That determination has not yet been made.
Consequently, 10 CFR s 2.705 has not been triggered and Applicant's " answer" to the requests for hearing was not filed pursuant to that section.
Instead, Applicant's answer to Petitioners' requests for hearing was filed pur-suant to 10 CFR 8 2.714(c) which explicitly provides that (c) any party to a proceeding nay file an answer to a petition for leave to intervene.
with particular reference to the factors set forth in paragraph (d) of this section Section 2.714(d) sets forth various matters which the Licensf ag Board is to con-sider in determining whether a request for hearing should be granted, including the nature of a petitioner's right under the Atomic Energy Act to be made a party and the nature and extent of the petitioner's property, financial or other interests in the proceeding.
It is precisely these matters which Applicant addressed in its answer to Petitioners' requests for hearing and Applicant acted fully with-in its rights as provided by 10 CFR 5 2.714 in so doing.
Petitioners' asser-tions to the contrary are thus without merit.
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' Petitioners also assert that Applicant's answer should be stricken because it is not clear to Petitioners that LeBoeuf, Lamb, Leiby and MacRae, the law firm that prepared and filed Applicant's answer, was authorized by Applicant to represent, and act on behalf of, the Applicant in filing its answer to the requests for hearing.
In " Applicant's Consolidated Answer," LeBoeuf, Lamb, Leiby and MacRae clearly indicates that it is acting on behalf of the Applicant as counsel for the Applicant.-/ Petitioners present no basis for doubting the authority of 2
LeBoeuf, Lamb, Leiby and MacRae to act for the Applicant in this proceeding other than Petitioners' unsupported assertion that "it is by no means clear what authority" that law firm has in this matter. This, in the Staff's view, is wholly insufficient to bring the authenticity of " Applicant's Consolidated Answer" into question or to require that it be stricken.
III. CONCLUSION For the reasons set forth above, it is the Staff's position that Petitioners' motion to strike Applicant's answer should be denied.
Respectfully submitted, 6'
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Jpseph R. Gray !
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,douns'el for NRC Staff Dated at Bethesda, Maryland this 19th day of November, 1979 2/
See " Applicant's Consolidated Answer to Requests for Hearing Filed by Natural Resources Committee and Alan H. Kirshen," October 23, 1979, pp. 1, 10.
1543 005
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAT [
S'D LICENSING BOARD In the Matter of
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PORTLAND GENERAL ELECTRIC COMPANY, p_,A_L.
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Docket No.
50-344
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(Control Building)
(Trojan Nuclear Plant)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO MOTION TO STRIKE APPLICANT'9 ANSWER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indi-cated by an asterisk, through deposit in the Nuclear Regulatory Commission 's internal mail system, diis 19th day of November,1979 :
Marshall E. Miller, Esq., Chairman
- Richard M. Sandvik, Esq.
Atomic Safety and Licensing Board Frank W. Ostrander, Jr.
U.S. Nuclear Regulatory Commission Counsel for Oregon Dept. of Washington, DC 20555 Energy 500 Pacific Building Dr. Kenneth A. McCollom, Dean 520 S.W. Yamhill Division of Engineering, Portland, OR 97204 Architecture & Technology Oklahoma State University Maurice Axelrad, Esq.
Stillwater, OK 74074 Lowenstein, Newman, Reis, Axelrad & Toll Dr. Hugh C. Paxton Suite 1214 1229 41st Street 1025 Connecticut Avenue, N.W.
Los Alamos, NM 87544 Washington, DC 20036 Mr. John A. Kullberg Mr. David B. McCoy Route One 348 Hussey Lane Box 250Q Grants Pass, OR 97526 Sauvie Island, OR 97231 William W. Kinsey Mr. Eugene Rosolie 1002 N.E. Holladay Coalition for Safe Power Portland, OR 97232 215 SE 9th Avenue Portland, OR 97214 Ms. Nina Bell 728 S.E. 26th Ronald W. Johnson, Esq.
Portland, OR 97214 Corporate Attorney Portland General Electric Company 121 S.W. Salmon Street Portland, OR 97204 1543 006
- s Dr. W. Reed Johnson
- Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal Panel
- Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20535 Atomic Safety and Licensing Appeal Alan S. Rosenthal, Esq.*
Panel (5)*
Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section (5)*
Office of the Secretary Dr. John H. Buck
- U.S. Nuclear Regulatory Coc=ission Atomic Safety and Licensing Appeal Washington, DC 20535 Board U.S. Nuclear Regulatory Commission Washington, DC 20555 r
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l'cr Jpseph/R. Gray
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, Counsel for NRC 5taff 1543 007