ML20215L831

Memorandum & Order Denying Util Motion to Strike Georgians Against Nuclear Energy (Gane) 861023 Appeal,Brief & Proposed Findings Re Licensing Board Decisions,Subj to Gane Timely Correction of Filing Deficiencies.Served on 861028

ML20215L831
Person / Time
Site:	Vogtle
Issue date:	10/27/1986
From:	Shoemaker C Atomic Safety and Licensing Board Panel
To:	GEORGIA POWER CO.
References
CON-#486-1280 OL, NUDOCS 8610290307
Download: ML20215L831 (4)

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00LKETED UNITED STATES OF AMERICA U%RC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BERIDCT 28 A10:07 Administrative Judges:

ggy , , :p Gary J. Edles, Chairman 00CKEI3': s - W f-Octobeth2T,9 1986 Christine N. Kohl Howard A. Wilber

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In the Matter of SERVED OCT 281986

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GEORGIA POWER COMPANY, ET AL. ) Docket Nos. 50-424 OL

) 50-425 OL (Vogtle Electric Generating )

Plant, Units 1 and 2) )

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MEMORANDUM AND ORDER Applicants have moved to strike the " Appeal, Brief and Proposed Findings Concerning Licensing Board Decisions" filed by Dr. Howard Deutsch on behalf of the intervenor Georgians Against Nuclear Energy (GANE), and to dismiss GANE's appeal. Applicants argue that the brief (1) is improper because Dr. Deutsch has never filed a notice of appearance on behalf of GANE and does not appear to be GANE's duly authorized representative; (2) is untimely; (3) does not clearly identify the errors of fact or law that are the subject of the appeal as required by Commission regulations; and (4) is scandalous because, among other Applicants' Motion to Strike the " Appeal, Brief and Proposed Findings Concerning Licensing Board Decisions" Filed by Howard Deutsch and Motion to Dismiss Appeal of Georgians Against Nuclear Energy (October 23, 1986).

8610290307Ogh$b424 ADOCK POR PDR g3 g ]_

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things, it contains " disparaging and ad hominem attacks on the Licensing Board." In order to avoid needless delay in the disposition of this matter, we deny applicants' motion, subject to GANE's timely correction of certain filing deficiencies.

1. The Commission's regulations provide that organizations participating in Commission proceedings may be represented by a duly authorized member or officer, or by an attorney-at-law. . . . Any person appearing in a representative capacity shall file with the Commission a written notice of appearance which shall state his or her name, address, and telephone number; the name and address of the person on whose behalf he or she appears; and, . . . in the case of (a non-attorney] representative, the basis of h her authority to act on behalf of the party.js or Although Dr. Deutsch was a witness in the case, it appears that he is not a duly authorized representative of GANE.4 Thus, the document tendered by Dr. Deutsch cannot be considered as GANE's brief on appeal. When Dr. Deutsch submitted a filing to the Licensing Board under similar circumstances, that Board was prepared to allow GANE to 2

Id. at 7.

10 CFR 2.713(b).

See Letter from Licensing Board Chairman Morton B.

Margulies to Douglas C. Teper (May 22, 1986).

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adopt the filing as its own.5 We are prepared to do the same with respect to the brief filed by Dr. Deutsch. If GANE intends to adopt the brief as its own, one of its duly authorized representatives should notify us of that fact by letter served on all parties and postmarked no later than November 3, 1986.

2. GANE's brief was to be filed (i.e., mailed) no later than October 8, 1986.6 The certificate of service accompanying Dr. Deutsch's brief to us was dated October 8 and was mailed in an envelope postmarked October 9. The applicants acknowledge that it is possible that an envelope placed in the mail on October 8 would bear an October 9 postmark, and we are prepared to accept the filing with us as timely. But the applicants also state that the copies served on them were postmarked October 10. A reasonable remedy for a failure to serve the brief on the applicants in a timely fashion is to accord parties additional time to respond. Therefore, assuming GANE adopts Dr. Deutsch's brief, the time limit for responding to the brief shall commence on October 10.

3. We have reviewed the applicants' arguments that the brief should be stricken because it does not conform to the 5

Ibid.

6 See 10 CFR 2.762(b), 2.701 (c) .

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4 requisite standards and is scandalous. Even without awaiting the filing of responses to the motion, we have decided not to strike the brief on these bases. Although the document has certain deficiencies, it raises issues that are amenable to intelligent discussion in a responsive brief. Any party, however, must bear the risk of shortcomings in its brief. See Philadelphia Electric Co.

(Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 870 n.76 (1984). Moreover, while the brief contains some impassioned rhetoric, its overall tone does not justify our striking it.

Applicants' motion to strike the brief filed by Dr.

Deutsch on behalf of GANE is denied, subject to GANE's notification by letter postmarked no later than November 3, 1986, of its intention to adopt Dr. Deutsch's brief as its own.

It is so ORDERED.

FOR THE APPEAL BOARD

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C. Jp an Sh'oemaker

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Secrb;ary to the Appeal Board ,

Mr. Wilber did not participate in this memorandum and order.

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