ML20140C761

Order Denying Applicant 840412 Motion to Dismiss Proceeding Due to Alleged Lack of Bases for Contentions.Motion Premature.Served on 840619

ML20140C761
Person / Time
Site:	Hope Creek
Issue date:	06/18/1984
From:	Mark Miller Atomic Safety and Licensing Board Panel
To:	Public Service Enterprise Group
References
OL, NUDOCS 8406190435
Download: ML20140C761 (3)

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m 16b DOCKETED UNITED STATES OF AMERICA um NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges LFH .s E+ -

Marshall E. Miller, Chairman CCO'~@jcb' Dr. Peter A. Morris

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Dr. David R. Schink SERVED JUN 19 1984

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In the Matter of )

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PUBLIC SERVICE ELECTRIC AND GAS CO., ) Docket No. 50-354-0L ET AL. )

(Hope Creek Generating Station, June 18, 1984 Unit 1) )

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ORDER DENYING APPLICANTS' MOTION TO DISMISS PROCEEDING By motion of April 12, 1984, the Applicants asked the Board to-dismiss this proceeding due to an alleged lack of bases for contentions.

A response opposing such motion was filed by the Staff on April 27. The Public Advocate filed his response in opposition on April 30. For the reasons described infra, the Applicants' motion.to dismiss is denied.

The motion is based upon the Applicants' argument that under NRC practice, all contentions must have a basis in order to be admissible (10CFR52.714(b)). The Applicants noticed the deposition of Mr. Joseph H. Rodriguez, the head of the Public Advocate's office, to determine the basis for'and his knowledge of the contentions. The Board issued a subpoena for the attendance of Mr. Rodriguez at his deposition, 8406190435 840618 PDR ADOCK 05000354 rh U

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from which action an appeal was taken to the Appeal Board by the Public Advocate.

While the appeal and an accompanying motion to stay were pending, Mr. Rodriguez filed an affidavit stating that he has "no personal knowledge or specialized technical information beyond the information presented to the Board in support of his contentions" (Affidavit filed March 26, 1984 at page 6). This affidavit further stated that Mr. Rodriguez' " direct participation was limited to reviewing the proposed petition to intervene, and assuring that the attorneys had researched the matter thoroughly" (Id., at 6-7). Based upon this affidavit, the Applicants withdrew the subpoena as moot, and now argue that there were no bases for the contentions when they were filed.

As a pleading matter, this Board has already ruled that Contentions 1, 2 and 3 are admissible and that they set forth sufficient bases to open discovery thereon.1 There is no requirement that the Public Advocate himself be knowledgeable about these contentions; it is sufficient for him to rely upon attorneys from his office to draft contentions. The drafting of pleadings does not require knowledge of their merits by the draftsmen. However, a different rule obviously obtains when the bases of pleadings or contentions is probed by discovery, or becomes the subject of motions for sumary disposition.

1 Contention IV was dismissed by our Order entered February 21, 1984.

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But a motion to dismiss the proceedings is premature at this time, and it will be denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD J #

• Pdrslall E. Miller, Chairman ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 18th day of June, 1984.

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