ML20039F814
| ML20039F814 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/11/1982 |
| From: | Carter L Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-SP, NUDOCS 8201130410 | |
| Download: ML20039F814 (2) | |
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NpJ60 UNITED STATES OF AMERICA
' "R " r g6C iUCLEAR REGULATORY COMMISSION
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d)MI'C SAFETY AND LICENSING BOAR 682 Jtfl12 All:04 6 ##h 3 efore Administrative Judges:
gg;g g, agg Louis J. Carter, C'hairman co nti c & 4L:
D Frederick J. Shon in y
Dr. Oscar H. Paris SERVED py3g ;gg, J
In the Matter of
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Docket Nos. 50-247 SP CONSOLIDATED EDISON COMPANY OF )
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(Indian Point, Unit No. 2)
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POWER AUTHORITY OF THE STATE OF )
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(Indian Point, Unit No. 3)
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January 11, 1982 MEMORANDUM AND ORDER (Setting Procedures in connection with Petitions to Intervene)
Informal inquiries concerning procedural requirements have been received from persons and organizations seeking to intervene. After these petitioners filed their petitions -- and in some cases amended petitions -- responsive pleadings in opposition thereto were filed by certain parties. The inquirers seek to learn whether and when they may respond to their opposition.
In an effort to clarify the procedures concerning the foregoing we are issuing this Order.
For a full discussion of this issue, parties and petitioners are referred to the Memorandum and Order of the Board issued July 7, 1981, sitting In The Matter of Long Island Lighting Company, Shoreham Nuclear Power Station Unit No. 1, Docket No. 50-322 OL, at mimeo pages 1 to 4. /
- A copy of the excerpted Memorandum and Order is attached as an appendix to this Order.
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8201130410 820111 h
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. January 11, 1982 Simply stated, the procedures are as follows:
(a)
If a responsive pleading to a petition or amended petition to intervene is filed, whether called an answer, response or opposition,the petitioner shall file an answer within 10 days or such other time as the board shall set.
(b) The party or person opposing intervention may file a further reply to the answer only where the answer raises new matter not previ-ously alleged.
The reply shall not reargue matters contained in the ini-tial pleading filed in opposition to the petition to intervene.
The board believes that where a party does not desire to file either a motion, answer, or reply, good practice suggests the board be notified by, letter that no opposition or reply will be filed.
Finally, in view of the fact that petitioners may not have been familiar with the correct filing dates, the board will set the date for petitioners to respond and for other parties to reply, if appropriate, under the rule set forth above.
IT IS ORDERED, 1.
That Petitioners may answer any pleadings filed in opposition to their petition to intervene by depositing such answer in the U.S. Postal Service mail, first class, postage prepaid, before the close of business on Friday, January 22, 1982.
2.
A reply to any new matters raised in such answer shall be deposited in the mail, as aforesaid, before the close of business on Monday, February 1, 1982.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 9tu,d Louis J. Os/ter, Chairman ADMINISTRATIVE JUDGE
s UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!HISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Louis J. Carter, Chairman Frederick J. Shon Dr. Oscar H. Paris In the Matter of
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Docket No. 50-322 OL L0r:G ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, July 7, 1981 Unit 1)
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MEMORANDUM AND ORDER (Ruling on Shoreham Opponents Coalition's Motion For Acceptance of Particularized Contention 19)
In response to a petition of Shoreham Opponents Coalition (SOC) filed January 24, 1980, this Board determined by Order dated March 5, N
1980 that it was beyond its jurisdiction to suspend the construction i
permit for the plant.
The Board also found that 50C had, with one exception, met the requirements for admission as an intervenor.
In the March Order the Board granted leave to S0C to further particulaiize Contention 19.
A, detailed discussion and our rulings on SOC's efforts to particularize are given later in this Order.
Initially we shall discuss. the procedural issues raised in the various pleadings.
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" Order Ruling on Petition of Shoreham Opponents Coalition."
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b,,.,( q l r yw, r o APPENDIX Dlv u
'u 676
Motion of SOC on Particularized Contention 19:
Procedural Problems On March IE, '1981, SOC filed a " Motion... for Acceptance of
' Particularized Contention 19" in an effort to comply with our March Order.
Long Island Lighting Company (LILCO or Applican't). filed its answer to 50C's motion on April 2,1981, and the NRC Staff filed its answer on April 7, 1981. Then, on April 28,1981, S0C filed a
" Response" to the answers filed by Applicant and Staff.
Staff in',its
... Opposition to SOC Request for Leave to File Response...",
dated April 30, 1981, urged the Board to reject SOC's " Response."
Applicant made no further filing.2_/
SOC requests leave of the Board, pursuant to 10 CFR 12.730(c),
to submit its " Response" based on what it asserts are "certain mis-characterizations and other improper arguments contained in the LILCO and Staff answers [to its motion to particularize Contention 19]...."
Staff argues that permission should not be granted because, if the Board grants SOC's request, Staff and Applicant would seek leave to respond; this could set up a " ping pong" effect whereby SOC might seek to reply to the " response to the reply," and so on.
We believe Staff is in error -- though it may have been misled i
because SOC named its pleading a " motion."
If it were, in fact, a motion, our practice would normally permit an answer only, and l
2/ Discovery has been continuing.
The parties have made varipa's' other filings but none are directly relevant to the matter dis-cussed herein.
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I APPENDIX i
a parties who do not first seek leave to file a reply are expressly denied the right to do so under 10 C.F.R. 1 2.730(c).
Detroit Edison Comoany (EnricoFermiAtomicPlant, Unit 2),ALAB-469,7NRC470,471 (1978); see also'Public Service Company of Oklahoma Associates Electric Cooperative (Black Fox Station, Units 1 & 2), LBP-776-36, 4 NRC 435, 441 (1976).
We believe, however, that the heart of this controversy was clearly illuminated by the Appeal Board in Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521 (1979).
There the Appeal Board, in reviewing a similar pro.
blem relating to contentions, said in pertinent part:
We believe that a contention, like a complaint in federal court, is intended to reflect what a party intends to prove on the merits but not an argument as to why his pleading should be entertained over his opponent's as yet unstated objections.
Thus, when a defendent moves to dismiss a complaint... a plaintiff is -- and must be -- allowed the opportunity to respond to the motion.
In this respect, regardless of how it is denominated [ J.., as a ' response' or E
' answer' to the contention] a suggestion by the appli-cant and staff that a particular contention is in-admissible... is akin to a motion to dismiss.
... [I]f the applicant and sta'ff are content to allow a contention to be accepted for litigation while denying
. its substance, no response-is required and no ruling is necessary until the merits are brought up.
A motion to dismiss, on the other hand, like a challenge to a con-
'tention, is followed -- after the other side is heard --
by a ruling on whether the matter will proceed.
In-sofar as contentions are concerned, the intervenors must be heard in response because they cannot be re-quired to have anticipated in the contentions them-selves the possible arguments their opponents might raise as arounds for dismissing them.
In this respect-r 1
too, contentions are like r'eferrahcourt complaints... D MJ'
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Before any suggestion that a contention should not be entertained can be acted upon favorably, the proponent of the contention must be given some chance to be heard in response. (emphasis added; one footnote in brackets, the othersomitted)
APPENDIX
In view of the aforesaid it is, we believe, apprcpriate to
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restate the posture of this case using the correct appellations of the documents filed.
On March 18, 1981, SOC filed its amended petition to intervene (the " Motion... for Acceptance of Particularized Con-tention19").
On April 2 and 7,1981, Applicant and Staff, respectively, filed motions to dismiss in part.
(Appiicant'sResponseandStaff's Answer).
On April 28, 1981, SOC filed its answer to the motions of Applicant and Staff,
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h'e hold therefore (1) that SOC's answer entitled " Response of S0C,
to Answers of NRC Staff and LILCO to SOC's Motion for Acceptance of Contention 19" is accepted as properly filed, and (2) that no further reply by Applicant or Staff is permitted since SOC's " Response" raises no new legal matters.
4-APPENDIX