ML20042B239

Motion for Leave to File Reply to Intervenor 820311 Response to Motion to Withdraw Applications.Intervenor Response in Requesting Dismissal Be W/Prejudice Is in Fact Motion for Addl Relief.Certificate of Svc Encl

ML20042B239
Person / Time
Site:	Perkins
Issue date:	03/19/1982
From:	Carr A DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8203250129
Download: ML20042B239 (6)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD m 22 '"' G9 In the Matter of

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DUKE POWER COMPANY

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Docket Nos. STN 50-488 A

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50-489 #

(Perkins Nuclear Station,

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50-49 g

Units 1, 2& 3)

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MOTION FOR LEAVE TO FILE REPLY TO INTERVENORS' t ~

" RESPONSE TO MOTION TO WITHDRAW" h7Is4 0 Y

Duke Power Company (Duke), pursuant to 10 CFR S 2.730 j

requests that it be granted leave to file a reply to Intervenors' (Mary Apperson Davis, et al.) " Response to Motion to Withdraw,"

dated March 11, 1982.

In support of this motion, Duke states as follows:

1.

On March 2, 1982, Duke filed a motion in this pro-ceeding asking the Board to permit Duke to withdraw without prejudice its application for construction permits for the Perkins Nuclear Station.

Intervenors' March 11 pleading is styled as a " Response" to Duke's motion to withdraw.

However, the Response is in fact a motion for additional relief.

Although the Commission's rules do not permit replies to answers as of right, the rules do contemplate that leave to t

file a reply may be granted upon motion.

See 10 CFR S 2.730 (c);

Detroit Edison Co. (Enrico Fermi 7.tomic Plant, Unit 2), AL72--

469, 7 NRC 470, 471 (1978).

As shown below, there is good' l

cause for granting such a motion in this instance.

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G

e 2.

Intervenors' March 11 Response makes several requests.

The Board is asked to dismiss this proceeding with prejudice, or, alternatively, if the Board terminates the proceeding without prejudice, Intervenors ask the Board to vacate all of its previous decisions in the proceeding.

Moreover, the Board is asked to order Duke to pay Intervenors' attorneys' fees and costs.

There can be no question that Intervenors' Response seeks affirmative relief from the Board and goes beyond the terms of Duke's March 2 motion.

Fairness requires that Duke be allowed to respond.

Moreover, if allowed to reply, Duke will show that each aspect of Intervenors' position is contrary to well-established Commission policy and controlling legal standards.

Accordingly, Duke respectfully requests that it be granted leave to reply to Intervencrs' March 11 Response to Motion to Withdraw.

Duke would be prepared to file a reply to Intervenors' pleading within 14 days of receipt of the Board's order granting leave to reply.

3.

Duke would call the Board's attention to a matter which it might wish to consider prior to ruling on Duke's request to file a response.

Specifically, Intervenors' Response is wholly devoid of any citation to any legal authority which could support the relief which they request, and thus Intervenors,

. as proponents, have failed to meet their burden.

See, 10 CFR S 2.732.

For example, Intervenors ask the Board to dismiss the application with prejudice.

However, Intervenors' pleading is silent with respect to two recent Appeal Board cases which bear directly on this issue, with particular emphasis on the showing which must be made by the proponent of such a motion.

Philadelphia Electric Company (Fulton Generating Station, Units 1 and 2!, ALAB-657, 14 NRC 967 (1981) and Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1),

ALAB-662, 11 NRC (December 7, 1981).

Moreover, the Response likewise fails to provide any authority whatsoever to support its request that this Licensing Board order Duke, a private entity, to pay some unspecified sum as " reasonable attorneys' fees and costs" to Intervenors.

Such a request would appear to need extensive briefing by Intervenors in light of the fact that the NRC, as a government agency, is not even authorized to order the payment of any intervenor expense from public funds.

See the Comptroller General's opinion attached to Board Notifi-cation of December 16, 1980.

Under these circumstances, this Board may well consider l

it more appropriate to direct Intervenors to provide a legal brief on their " motion" setting forth in full the bases for the relief they seek, rather than acting at this time on Duke's i

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_4-request to file a response. /

To do otherwise is to shift to Duke a burden more properly Intervenors.

Respectfully submitted, l$

Albert V. Carr, Jr. '

DUKE POWER COMPANY P. O. Box 33189 Charlotte, North Carolina 28242 (704) 373-2570 March 19, 1982

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If such a legal brief is crdered, Duke requests the opportunity to respond to such.

c.a-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

.B2 g 22 MMM In the Matter of

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DUKE POWER COMPANY

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Docket Nos. STN 50-488.

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50-489 (Perkins Nuclear Station,

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50-490 Units 1, 2 & 3)

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CERTIFICATE OF SERVICE I hereby certify that copies of " Motion for Leave to File Reply to Intervenors' ' Response to Motion to Withdraw'"

dated March 19, 1982 in the captioned matter have been served upon the following by deposit in the United States mail this 19th day of March, 1982:

Alan S.

Rosenthal, Esq.

Dr. Donald P. deSylva Chairman Associate Professor of Marine Atomic Safety and Licensing Science Appeal Board Rosen'.tiel School of Marine U. S. Nuclear Regulatory and Atmospheric Science Commission University of Miami Washington, D. C.

20555 Miami, Florida 33149 Dr. John H. Buck William G. Pfefferkorn, Esq.

Atomic Safety and Licensing Pfefferkorn and Cooley, P.A.

Appeal Board P.

O. Box 43 U.

S. Nuclear Regulatory Winston-Salem, North Carolina 27102 Commission Washington, D. C.

20555 Sherwin E. Turk, Esq.

Counsel for NRC Regulatory Staff Mr. Thomas S. Moore U.

S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C.

20555 Appeal Board U. S. Nuclear Regulatory Charles A. Barth, Esq.

Commission Counsel for NRC Regulatory Staff Washington, D. C.

20555 U.

S. Nuclear Regulatory Commission l

Washington, D. C.

20555 Ivan W.

Smith, Chairman Atomic Safety and Licensing Board William A.

Raney, Jr., Esq.

U. S. Nuclear Regulatory Special Deputy Attorney General Commission State of North Carolina Washington, D. C.

20555 Department of Justice P.

O. Box 629 Dr. Walter H. Jordan Raleigh, North Carolina 27602 881 West Outer Drive Oak Ridge, Tennessee 37830 Mrs. Mary Apperson Davis Route 4 l

Box 261 -

Mocksville, North Carolina 27028 1

_. - ~. _,. _ - - _.

J. Michael McGarry, III, Esq.

Debevoise & Liberman 1200 Seventeenth Street, N.W.

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Washington, D. C.

20036 Quentin Lawson, Esq.

Federal Energy Regulatory Commission Room 8611 825 N. Capitol Street, N.E.

Washington, D. C.

20426 Mr. Chase R.

Stephens Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C.

20555 Chairman Atomic Safety and Licensing Board Panel U.

S. Nuclear Regulatory Commission Washington, D. C.

20555 ff AT5ert V. Carr, JC

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