ML19210E844
| ML19210E844 | |
| Person / Time | |
|---|---|
| Site: | Fort Calhoun  |
| Issue date: | 11/20/1979 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912130081 | |
| Download: ML19210E844 (5) | |
Text
11/20/79 UNITED STATES OF AtitKu,A NUCLEAR REGUI.ATORY COMMISSION w
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD N
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OMAHA PUBLIC POWER DISTRICT
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Docket No. 50-285 J1
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(Fort Calhoun Station, Unit 1)
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'S NRC STAFF'S RESPONSE TO MOTION TO j
STRIKE APPLICANT'S ANSWER G2 I.
INTRODUCTION On October 30, 1979, the Natural Resources Committee of the Citizens Advisory Board of the Metropolitan Area Planning Agency and Alan H. Kirshen, acting individually (hereinafter referred to as " Peti ioners"), 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
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requirements of 10 CFR 5 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 57C Staf f'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 8 2.705 in that it fails to state any of the matters required by that section and instead is a substantive argument against the requests for l_/
Petitioners' requests for hearing were filed on October 9, 1979. Applicant's Consolidated Answer to the recuests for hearing, which is the subject of the instant motion, was filed on n-tober 23, 1979.
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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.
(emphasis 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, after 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 H 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-t suant to 10 CFR 8 2.714(c) which explicitly provid'e's that (c) any party to a proceeding may 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 Licensing 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 9 2.714 in so doing.
Petitioners' asser-tions to the contrary are thus without merit.
1543 015 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.S Petitioners present no basis for doubting the authority of 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 istheStafy'spositionthat Petitioners' motion to strike Applicant's answer should be denied.
Respectfully submitted, f1 nj 1,~
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J seph' R. Gray founsel for NRC Stalf Dated at Bethesda, Maryland this 20th day of November, 1979 1/
See " Applicant's Consolidated Answer to Requests for Hearing Filed by Natural Resources Committee and Alan H. Kirshen," October 23, 1979, pp. 1, 10.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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OMAHA PUBLIC POWER DISTRICT
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Docket No. 50-285
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(Fort Calhoun Station, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO MOTION TO STRIKE APPLICANT'S 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, dais 20th day of November,1979:
Elizabeth S. Bowers, Esq., Chairman
- Citizens Advisory Board Atomic Safety and Licensing Board Metropolitan Area Planning Agency U.S. Nuclear Regulatory Commission Suite 200 Washington, DC 20555 7000 West Center Road Deaha, N: 68106 Mr. Ernest E. Hill s
Lawrence Livermore Labcratory Alan H. Kirshen, Associate University of California Professor of Law P. O. Box 808, L-123 C/0 Creighton University Livermore, CA 94550 School of Law 2133 California Street Dr. Quentin J. Stober Omaha, NE 68178 Fisheries Research Institute University of Washington Harry H. Voigt, Esq.
Seattle, WA 98195 LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, N.W.
Emett Rogert, Chairman Washington, DC 20036 Washington Caunty Board of Supervisors Margaret R. A. Paradis, Esq.
Courthouse LeBoeuf, Lamb, Leiby & McsRae 16th & Colfex Streets 1333 New Hampshire Avenue, N.W.
Blair, NE 68008 Washington, DC 20036 Omaha Public Power District Atomic Safety and Licensing Board 1623 Harney Street Panel
- 0=aha, NE 68102 U.S. Nuclear Regulatory Commission Washington, DC 20555 I543 017 Atcmic Safety and Licensing Appeal Panel (5)*
U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section (5)*
Office of the Secretary U.S. Nuclear Regualtory Co==ission Washington, LC 20555
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