ML20052E554

Motion for Leave to File Reply to Intervenor 820429 Response to Util Motion to Withdraw Application for CPs W/O Prejudice.Factual & Legal Arguments in Intervenor Response Could Not Be Anticipated.Certificate of Svc Encl

ML20052E554
Person / Time
Site:	Perkins
Issue date:	05/06/1982
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8205110226
Download: ML20052E554 (6)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'62 IMY-7 N1:26 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD C

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f In the Matter of )

) Docket Nos. ST DUKE POWER COMPANY ) -4 4

) -490 (Perkins Nuclear Station, ) 5gEDg i Units 1, 2 and 3) ) C Afg #84 MOTION FOR LEAVE TO FILE REPLY TO INTERVENORS ' APRIL 29 RESPONSE TO MOTION TO WITHDRAW ,

Duke Power Company (Duke) requests that it be granted leave to file a reply to Intervenors' (Mary Apperson Davis, et al.) April 29, 1982 Response to Duke's motion to withdraw with-out prejudice its application for const.:uction permits for the Perkins Nuclear Station. Although the Ccmmission's rules do not authorize replies to answers as of right, the rules do con-

,, template that leave to file a reply may be granted upon motion.

See 10 CFR $ 2.730(c); Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978). / The need to reply results from the fact that factual and legal arguments made by Intervenors' April 29 Response could not have been anti-cipated by Duke. Thus, as shown below, there is good cause for l auth,orizing a reply in this case. In support of this motion, Duke states as follows:

( 1. On March 2, 1982 Duke filed a motion to withdraw without prejudice its application for the Perkins Station.

• / Duke's April 19 motion to withdraw (at p. 1, n. 1) anti-cipated the possibility that such a reply would be necessary.

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2-On March 11 Intervenors filed a " Response to Motion to With-draw". In fact, that March 11 pleading was a counter-motion.

Intervenors sought dismissal of Duke's application with pre-judice and payment of their attorneys fees and costs by Duke.

On March 19 Duke requested leave to answer Intervenors' counter-motion.

In response to'these matters, the Licensing Board is-sued an order on April 1 that required the pleadings concern-ing the withdrawal of the Perkins application to'be refiled.

The Licensing Board also directed Duke to take into account in its new motion to withdraw the relief sought by Intervenors' counter-motion.

2. Although Intervenors' March 11 counter-motion sought affirmative relief from the Licensing Board, Intervenors made no attempt to justify or support their claims. Nevertheless, J

in resubmitting its motion to withdraw, Duke followed the Licensing Board's directive and addressed Intervenors' argu-ments insofar as possible.

Intervenors' April 29 Response goes well beyond the arguments hinted at in their previous pleading. Indeed, Intervenors now make factual and legal arguments that were w

nowhere to b?g seen in their earlier pleading. For example, in an attempE to show their contribution to this proceeding, Intervenors' March 11 pleading (at p. 1) made the bald faced claim that " peak load pricing and other suggestions by the Intervenors in this matter such as the hiring of an 1

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economist have been carried out. The March 11 pleading did not say another word on this subject. But now, in a strained effort to correct that omission, Intervenors' April 29 Response (at pp. 3-5) quotes at length from proceedings dur-ing 1976 and 1977 before the Licensing Board and the North Carolina Utilities Commission.

Duke also believes that it is necessary to respond to Inte rvenors ' claim that they were responsible for a change in the level of Yadkin River withdrawals proposed by Duke in connection with the operation of the Perkins Station (April 29 Response, pp. 5-6). This argument is not even hinted at in Intervenors' March 11 pleading.

In addition, Intervenors accuse. Duke of bad faith in seeking withdrawal of the Perkins application (Response, pp. 11-12). Intervenors also offer a host of legal arguments

-- albeit invalid ones -- to support their claim for attorneys fees (Response, pp. 12-20). Once again, these are arguments that Intervenors did not present in their previous pleading.

3. In truth, Intervenors' attempt to justify their position is without merit. However, Duke must be given an op-portunity to confront Intervenors' arguments. For that reason, o

Duke requests that it be granted leave to reply to Intervenors' April 29 Response. Duke suggests that May 28, 1982 be fixed as the date for filing that reply.

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. Accordingly, Duke Power Company respectfully requests that it be granted leave to reply no Intervenors' April 29 Response to Duke's motion to wi thdraw.

Respectfully submitted

//

J [ Michael McGarryf 1II /

Mott M. DuBoff DEBEVOISE & LIBERMAN 1200 Seve mteenth Street, N.W.

(202) 8,57-9833 William L. Porter Albert V. Carr, Jr.

Ellen T. Ruff DUKE POWER COMPANY P. O. Box 33189 Charlotte, North Carolina 28242 (704) 373-2570

- Attorneys for Duke Power Company, et al.

May 6, 1982 9

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UNs2ED STATES OF AMERICA NUCLEAR 3EGULATORY COMMISSION BEFORE TF .\TOMIC SAFETY AND LICENSING B6AiBY -7 rn :?6

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In the Matter of ) ti Tp s C

) Docket Nos. STN:I50-488 DUKE POWER COMPANY ) 50-489

) 50-490 (Perkins Nuclear Station, )

Units 1, 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of Duke Power Company's,

" Motion for Leave to File Reply to Intervenors' April 29 Response to Motion to Withdraw", dated May 6, 1982, have been served upon the following by deposit in the United States mail this 6th day of May, 1982.

Alan S. Rosenthal, Esq. Dr. Donald P. deSylva Chairman Associate Prpfessor of Marine Atomic Safety and Licensing Science Appeal Board Rosenstiel School of Marine

. U.S. Nuclear Regulatory and Atmospheric Science Commission s 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.

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Counsel for NRC Regulatory Staff Thomas S. Moore U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Charles A. Barth, Esq.

Washington, D.C. 20555 Counsel for NRC Regulatory Staf f U.S. Nuclear Regulatory Ivan W. Smith Commission Chairman Washington, D.C. 20555 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

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Mary Apperson Davis Scott Stucky Route 4 Docketing and Service Station -

Box 261 U.S. Nuclear Regulatory Mocksville, North Carolina 27028 Commission Washington, D.C. 20555 William L. Porter, Esq.

Albert V. Carr, Jr., Esq. Chairman Duke Power Company Atomic Safety and Licensing P. O. Box 33189 Board Panel Charlotte, North Carolina'28242 U.S. Nuclear Regulatory Commission Quentin Lawson, Esq. Washing' ton, D.C. 20555 Federal Energy Regulatory Commission Room 8631 825 N. ' *.pitol Street, N.E.

Washington, D.C. 20426

, ]g J./ Michael McGarg, IIY ,

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