ML20049H893
| ML20049H893 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/22/1982 |
| From: | Brandenburg B CONSOLIDATED EDISON CO. OF NEW YORK, INC. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8203040444 | |
| Download: ML20049H893 (8) | |
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NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD g
s Before Administrative Judges:
Louis J.
Carter, Chairman Frederi.ck J.
Shon Dr. Oscar H.
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'l In the Matter of i
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Docket Nos. 50-247-SPJ/
\\s ;50-286-SP' CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (Indian Point, N ~
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Unit No. 2),
February 22, 1982 POWER AUTHORITY OF THE STATE OF NEW YORK, (Indian Point, Unit No. 3)
x CON EDISON'S ANSWER TO MESSINGER, ET AL.,
PETITION FOR LEAVE TO AMEND
' PETITION FOR INTERVENTION Pursuant to 10 CFR S 2.714(c) and the Atomic Safety and Licensing Board 's Order of December 2, 1981, Consolidated Edison Company of New York, Inc.
(" Con EdisonE), -licensee of Indian Point Unit No. 2, submits its answer to th'elpetitio'n dated February 5, 1982, of Ruth Mess.inger, et al.,;which'.
petition seeks leave to amend an earlier petition for'-leave to I)SC intervene filed by_Ms. Messinger on November 6, 1981.
Con 1
Edison opposes the Messinger petition for leave to amend, for
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PDR ADOCK 05000247 Q
the reasons set forth below.
i The February 5 Messinger petition is manifestly untimely under the orders issued by this Board.
At the December 2, 1981 pre-hearing conference, with a representa-tive of Messinger in attendance, the Board ruled that
" petitioners [for leave to idtervene) shall file all amend-ments and/or supplements to their petitions by Thursday, Decembe r 10, 1981, or an explanation as to why they cannot do so as of that date." (December 2, 1981 Pre-Hearing Conference, Tr. 42).
By neither amending their original petition by December 10, 1981, nor proffering by that date an explanation as to why additional time would be required to amend, Messinger, et al., have failed to com-ply with the Board's orders, and thus surrendered their rights to make f urther amendment regarding intervention.
Consequently Con Edison respectfully contends that the amended petition -- f.iled nearly two months-late and of fering no justi-fication 'for its belated filing -- should be denied by the Board.
The Messinger petition is also deficient in that it fails to set forth any basis for the Board to determine whether the standards of 10 CFR S' 2.714(a )(1)* governing The Commission's regulations at 10 CFR S 2. 714 ( a )(1 )
state with regard to untimely petitions:'
"Nontimely filin'gs will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to (Footnote continued on next'page.) i y.
late intervention may have been et.
Pursuant to 10 CFR S 2. 714 ( a ) ( 3 ), *
- the initial Messinger petition "may be amend-ed only with the approval of the presiding officer, based on a balancing of the factors specified in paragraph (a )(1) of this section."
Conspicuous by its absence is any statement (Footnote continued f rom previous page. )
rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following f actors in addition to those set out in paragraph (d ) of this section:
4 (i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected (iii) The extent to which the petitioner's parti-cipation may reasonably be expected to as-sist in developing a sound record.
(iv) The extent to which the petitioner's interest J
will be represer. ed by existing parties.
(v) The extent to which the petitioner 's partici-pation will broaden the issues or delay the i
proceeding.
10 CFR S 2.714 (a )( 3 ) states:
Any person who has filed a petition for leave to intervene or who has been admitted as a party pur-suant to this section cay amend his petition for leave to intervene.
A petition may be amended with-out-prior approval of the presiding of ficer at any time up to fifteen (15: days prior to the holding of the special prehearing conference pursuant.to S 2.751a, or where no special prehearing conference is held, fiftern (15) days prior _ to the holding of the first prehearing conference.
After this time a petition may be amended only with approval of the presiding officer, based on a balancing of-the factors'speci-fled in paragraph (a )(1). of this section.
Such an amended petition for leave to intervene.must satisfy the requirements of this paragraph (a ) of this sec-tion pertaining to specificity.
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averring " good cause" for failure to file on time, the first factor to be considered governing the grant of un-timely petitions.
In addressing this factor, the appeal board has ruled that where no good cause.is tendered for the tardiness of a petition, the petitioner's demonstra-tion on the other four factors must be particularly strong.
Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3 ),
ALAB-431, 6 N.R.C.
460, 462 (1979).
The Messinger peti-tion fails to make an even cursory demonstration as to these remaining four factors.
Therefore, having completely neglected to address any of the standards to be met before a petitioner will be afforded the privilege of late filing, the petition to amend should be denied.
Even if the petition had been timely filed, it would need to be denied for the furtier and independent reason that the NRC's Rules of Practice, 10 CFR S 2.715 (c), regarding participation by " interested states" have not been met.
See " Con Edison's Answer to Petitions for Leave to Intervene", dated November 24, 1981 at pp.
2-7.
The February 5 Messinger petition, like the earlier petition, fails to establish the " chain of authority" necessary to demonstrate the signatories' valid representation of the in t,e re s ts, rights and liabilities of'the City of New York in this proceeding, and also fails to show any basis for Ms.
Messinger's alleged authority to represent the individuals
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on whose behalf she purports to sign.
See December 2, 1981 l
Pre-hearing Conference, Tr. 29 -30.
i WHEREFORE, Con Edison respectfully requests that the February 5, 1982 " Petition for Leave to Amend Petition for Intervention to Add Five Additional Signatories" filed by Ruth i
Messinger et al., should be denied.
t Respectfully submitted, h,
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BRENT L.
BRANDENBUR Assistant General unsel Consolidated Edison Company of New' York, Inc.
4 Irving Place New York, New York 10003 (212) 460-4333 1
4 Dated:
February 22, 1982 i
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UNITED STATES OF AMERICA
,h gp3 1 NUCLEAR REGULATORY COMMISSION
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.i ATOMIC SAFETY AND LICENSING BOARD W-
.s Before Administrative Judges:
Louis J. Carter, Chairman Frederick J.
Shon Dr. Oscar H.
Paris
-________________x CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (Indian Point, Docket Nos. 50-247-SP Unit No. 2) 50-286-SP POWER AUTHORITY OF THE STATE OF February 22, 1982 NEW YORK, (Indian Point, Unit No. 1)
x CERTIFICATE OF SERVICE I certify that I have served copies of " Con Edison's Answer to Messinger Et A1., Petition for Leave to Amend Peti-tion for Intervention" on the following parties by first class mail, postage prepaid, this 22nd day of February 1982.
Docketing and Service Branch Dr. Oscar H.
Paris-Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555
-U.S.
Nuclear Regulatory Commission Louis J.' Carter, Esq., Chairman Washington, D.C.
20555 Administrative _ Judge Atomic Safety and Licensing Mr. Frederick J. Shon Bbard Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S. Nuclear Regulato y c
Commission Washington, D.C.
20555 i
l' Janice Moore, Esq.
Charles J. Maikish, Esq.
Counsel for NRC Staff Litigation Division Office of the Executive The Port Authority of Legal Director New York and New Jersey U.S. Nuclear Regulatory One World Trade Center Commission New York, N.Y.
10048 Washington, D.C.
20555 Ezra'I.Bialik, Esq.
Paul F.
Colarulli, Esq.
Steve Leipsiz, Esq.
Joseph J.
Levin, Jr., Esq.
Environmental Protection Bureau Pamela S.
Horowitz, Esq.
New York State Attorney Charles Morgan, Jr., Esq.
General's Office Morgan Associated, Chartered Two World Trade Center
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1899 L Street, N.W.
New York, N.Y.
10047 Washington, D.C.
20036 Alfred B.
Del' Bello
['e Charles M.
Pratt, Esq.
Westchester County Executive Thomas R.
Frey, Esq.
Westchester County Power Authority of the 148 Martine Avenue SAtate of New York New York, N.Y.
10601 10 Columbus Circle New York, N.Y.
10019 Andrew S.
Roffe, Esq.
New York Stat'e Assembly Ellyn R. Weiss, Esq.
Albany, N.Y.
12248 Uilliam S. Jordan, III, Esq.
Harmon & Weiss Renee Schwartz, Esq.
1725 I Street.
N.W.,
Suite 506 Botein, Hays, Sklar & Herzberg Washington, D.C.
20006 Attorneys for Metropolitan Transportation Authority Joan Holt, Project Dire ctor 200 Park Avenue Indian Point Project New York, N.Y.
10166 New York.Public Interest Research Group Stanley B.
Klimberg i
5 Beekman Street General Counsel New York, N.Y.
10038 New York State Energy Office 2 Rockefeller State Plaza John Gilroy, Westchester Albany, N.Y, 12223 Coordinator
-Indian Point Project Honorable Ruth Messinger New York Public Interest Member of the Council of the
.Research Group City of New York 240 Central Avenue District #4 Whit,e Plains, New York 10606 City Hall New York, N.Y.
10007 Jeffrey M.
Blum NeQ York University L.w School Marc L.
Parris, Esq.
423 Vanderbilt Hall County Attorney Washington Square South County of Rockland t
New York, N.Y.
10012 11 New Hempstead Road New City, N.Y.
10010,
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Geoffrey Cobb Ryan Alan Latman, Es.
j Conservation Committee 44 Sunset Drive Chairman, Director Croton-on-Hudson, N.Y.
10520 New York City Audubon Society 71 W.
23rd Street, Suite 1828 Lorna Salzman
. New York, N.Y.
10010 Mid-Atlantic Representative Friends of the Earth, Inc.
Greater New York Council on Energy 208 West 13th Street e-
,c/o Dean R.
Corren, Director New York, N.Y.
10011
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New York University 26 Stuyvesant Street Zipporah S.
Fleisher New York, N.Y.
10003 West Branch Conservation Association
/ ' Atomic Safety and Licensing 443 Buena Vista Road Board Panel New City, N.Y.
10956 U.S.
Nuclear Regulatory Commission Mayor George V.
Begany Washington, D.C.
20555 Village of Buchanan 236 Tate Avenue m
Atomic Safety and Licensing
- Buchanan, N.Y.
10511 Appeal Board Panel Judith Kessler, Coordinator U.S.
Nuclear Regulatory Commission Rockland Citizens for Safe Washington, D.C.
20555-Energy 300 New Hempstead Road Honorable Richard L.
Brodsky
-New City, N.Y.
10956 Member of the County Legislature Westchester County David H.
Pikus, Esq.
County Office Building Richard F.
Czaja, Esq.
White Plains, N.Y.
10601 330 Madison Avenue New York, N.Y.
10017
, Pat Posner, Spokesperson
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,, ' Parents. Concerned About Indian Point P.' O.
- ox-125 Croton-on7 udson, N.Y.
10520 E
Charles A.
Scheiner, Co-Chairperson We'shester People's Action tc Coa'li tion, Inc.'
P.O.
Box 488 White Pl'ains, N.Y._
10602 Dated:
February 22, 1982 New York, New -York A
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