ML19274D408
| ML19274D408 | |
| Person / Time | |
|---|---|
| Site: | 05000477, 05000478 |
| Issue date: | 01/15/1979 |
| From: | Conner T CONNER, MOORE & CORBER |
| To: | |
| References | |
| NUDOCS 7901230307 | |
| Download: ML19274D408 (6) | |
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UNITED STATES OF AMERICA W'
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the MLtter of )
)
PUBLIC SERVICE ELECTRIC AND ) Docket Nos. STN 50-477 GAS COMPANY ) 50-478
)
(Atlantic Generating Station, )
Units 1 and 2) )
APPLICANT'S MOTION TO STRIKE MOTIONS BY INTERVENORS COUNTY OF ATLANTIC AND COUNTY OF OCEAN TO IMPOSE TERMS AND CONDITIONS UPON APPLICANT'S WITHDRAWAL OF APPLICATION Intervenors County of Atlantic and County of Ocean
("Intervenors") have each filed a notice of motion to impose terms and conditions upon the Withdrawal of Application filed by Applicant Public Service Electric & Gas Company
(" Applicant"). Essentially, Intervenors ask that each be awarded the costs of its intervention, that a bond be posted to cover any future costs incurred by Intervenors in a like proceeding, and that the Applicant be precluded from filing a substantially similar application for the next ten years.
Each of these requests for relief is entirely frivolous, but the Board need not reach the merits of Intervenors' motions since they are clearly deficient under the Commission's Rules of Practice.
790123650 7 g
Applicant's Notice of Withdrawal was filed and served on December 20, 1978. The purported motion by Intervenor County of Atlantic served on December 29, 1978, simply states the requested relief and does not, as required by the Commission's regulations under 10 C.F.R. 52. 730 (b) , " state with particularity the grounds" for the motion. Instead, Intervenor cavalierly declares that a supporting brief will be filed by January 15, 1979. Similarly, the motion filed by Intervenor County of Ocean served on January 9, 1979, merely requests relief almost in haec verba but also without stating grounds. Reliance on Atlantic County's brief, not yet filed, is the sole basis for relief.
Thus, by its unauthorized modification of Commission procedure, Intervenors have, in effect, granted themselves an extension of time within which to file the particularized statement of grounds required by the Commission's Rules of Practice thus seeking to deny " fair and equitable" treatment to the Applicant. Because Intervenors' motions fail to contain the required statement of grounds, each motion is deficient on its face and therefore void.
This is not an objection which exalts form above substance, cf. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Plant Station), ALAB-124, 6 AEC 358, 364 (1973).
As the Commission understood in promulgating S2.730, a party cannot respond to a motion unless it knows the grounds for the action proposed. To allow the proponent to file the authority for his requested relief at some ' ter date, requires
the respondent to defend himself without knowing what arguments he must meet--and this must b'e done within 10 days after the filing of the initial motion.
In the event that the Board should, however, accept Intervenors' motions and permit the later filing of a brief, the motions are frivolous. There is simply no authority to preclude the filing of an application for a license under the Atomic Energy Act of 1954, as amended.
Hence, any restriction such as that sought by the Inter-venors would not lie. In any event, the sizeable $125,000 filing fee, which the Applicant forfeited by withdrawal of its application,is sufficient to protect against arbitrary or precipitous filings and withdrawals.
Second, the costs of intervention are not awardable to intervenors. See Nuclear Regulatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 494 (1976); Transnuclear, Inc. Low-Level Uranium Exports to EURATOM Member Nations, CLI-77-31, 6 NRC 849 (1977); Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603 (1977). If the costs of intervention may not be paid, certainly there is no legal authority for requiring bonds from an applicant for that purpose.
4-Accordingly, the instant motions by Intervenors are invalid under the Commission's regulations and should be stricken. Alternatively, each should be denied as frivolous on its face.
Respectfully submitted, CONNER, MOORE & CORBER Tro . onner, Jr.
Counsel for the Applicant January 15, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
PUBLIC SERVICE ELECTRIC ) Docket Nos. STN 50-477
& GAS COMPANY ) 50-478
)
(Atlantic Generating Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Motion to Strike Motions by Intervenors County of Atlantic and County of Ocean to Impose Terms and Conditions Upon Applicant's Withdrawal J2 Application," dated January 15, 1979 in the captioned matter, have been served upon the following by deposit in the United States mail this 15th day of January, 1979:
Sheldon J. Wolfe, Esq. Carl Valore, Jr. Esq.
Chairman, Atomic Safety and Attorney for County of Atlantic Licensing Board Valore, McAllister, DeBrier, U.S. Nuclear Regulatory Aron and Westmoreland Commission 535 Tilton Road Washington, D.C. 20555 Northfield, New Jersey 08225 Mr. Lester Kornblith, Jr. Franklin H. Berry, Jr., Esq.
Atomic Safety and Licensing County Counsel Board Panel County of Ocean U.S. Nuclear Regulatory Berry, Summerill, Rinck & Berry Commission P. O. Box 757 Washington, D.C. 20555 34 Washington Street Toms River, New Jersey 08753 Dr. David R. Schink Department of Oceanography Chairman, Atomic Safety and Texas A&M University Licensing Board Panel College Station, Texas 77840 U.S. Nuclear Regulatory Commissio Washington, D.C. 20555 Mr. Kenneth B. Walton 309 Twenty-First Street, South Chairman, Atomic Safety and Brigantine, New Jersey 08203 Licensing Appeal Board Panel U.S. Nuclear Regulatory Commissior John J. Degnan, Esq. Washington, D.C. 20555 Attorney General of New Jersey Department of Law and Stephen M. Schinki, Esq.
Public Safety Counsel for NRC Regulatory Staff Division of Law Office of the Executive Legal 1100 Raymond Boulevard Director Newark, New Jersey 07102 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Mr. Chase R. Stephens Richard S. Salzman, Esq.
Docketing & Service Section Chairman Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washingtcn, D.C. 20555 Commission Washington, D.C. 20555 Anthony Z. Roisman, Esq.
Natural Resources Defense Council Dr. John H. Buck 917 15th Street, N.W. Atomic Safety and Licensing Washington, D.C. 20005 Appeal Board U.S. Nuclear Regulatory Mark L. First, Esq. Commission Deputy Attorney General Washington, D.C. 20555 State of New Jersey State House Annex Michael C. Farrar, Esq.
Trenton, New Jersey 08625 Atomic Safety and Licensing ,
Appeal Board Harold P. Green, Esq. U.S. Nuclear Regulatory Commission Fried, Frank, Harris, Shriver Washington, D.C. 20555
& Kampelman Suite 1000, The Watergate 600 600 New Hampshire Avenue, N.W.
Washington, D.C. 20037 Dr. Glenn L. Paulson Assistant Commissioner, State of New Jersey Department of Environmental Protection Labor & Industry Building John Fitch Plaza Trenton, New Jersey 08625 Richard Fryling, Jr., Esq.
Assistant General Solicitor Public Service Electric
& Gas Company 80 Park Place Newark, New Jersey 07101 R. William Potter, Esq.
Assistant Deputy Public Advocate Department of Public Advocate Division of Public Interest Advocate P. O. Box 141 520 East State Street Trenton, New Jersey 08625 M Mj'> -
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