ML20083K602

Motion to Dismiss Proceeding Due to Lack of Bases of Contentions.Certificate of Svc Encl

ML20083K602
Person / Time
Site:	Hope Creek
Issue date:	04/12/1984
From:	Conner T CONNER & WETTERHAHN, Public Service Enterprise Group
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8404160231
Download: ML20083K602 (7)

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%HD DOCMETED USHRC UNITED STATES OF AMEhAAPR 16 N1:15 NUCLEAR REGULATORY COMMISSION BeforetheAtomicSafetyandL'iN45b5knk-Wddi ERANCH Public Service Electric and )

, Gas Company )

) Docket No. 50-354-OL (Hope Creek Generating )

Station) )

APPLICANTS' MOTION TO DISMISS PROCEEDING DUE TO LACK OF BASES OF CONTENTIONS Preliminary Statement In its Special Prehearing Conference Order, the Atomic Safety and Licensing Board (" Licensing Board" or " Board")

presiding over this proceeding admitted four contentions proposed by the Public Advocate of the State of New Jersey, Mr. Joseph H. Rodriguez ("Public Advocate") .1 Subsequent depositions of the Public Advocate's experts on Contention 4 revealed no basis for the contention.2_/ Accordingly, the Board dismissed Contention 4 from the proceeding.3_/

-1/ Public Service Electric & Gas Company (Hope Creek Generating Station), Docket No. 50-354, "Special Prehearing Conference Order" (December 21, 1983).

-2/ Applicants' Motion to Strike Contention 4 (February 3, 1984); The Public Advocate's Consent to the Applicant's Motion to Dismiss -Contention IV and Comments on the Applicant's Arguments in Support Thereof (February 17, 1984).

-3/ Public Service Electric & Gas Company (Hope Creek Generating Station), Docket No. 50-354, " Order i Dismissing Contention IV" (February 21, 1984).

1 8404160231 840412 PDR ADOCK 05000354 O PDR D562 -- -- -

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In order to determine the bases of the three remaining l contentions in this proceeding, Applicants applied for a subpoena ,of Mr. Rodriguez.A On March 15, 1984, the re-quested subpoena was issued by the-Board. In response, the Public Advocate moved the Atomic Safety and Licensing Appeal Board (" Appeal Board") to quash the subpoena.5_/ In his affidavit accompanying his motion to quash, Mr. Rodriguez stated that he has "no personal knowledge or specialized technical information beyond the information presented to the Board in support of [his] contentions."6_/ Thus, as Mr.

Rodriguez is the intervenor in this proceeding and as he has no knowledge of the bases of his contentions, Applicants move that the Board dismiss this proceeding.

Argument The NRC Rules of Practice and applicable Licensing Board and Appeal Board decisions make it abundantly clear that, in order to be admissible in an operating license 4/

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Applicants' Response to the Public Advocate's " Motion to Vacate PSE&G's Notice of Deposition and for a Protective Order in the Form of Declaratory Ruling" (March 13, 1984); Application for Subpoena (March 13, 1984).

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5/ The Public Advocate of the State of New Jersey's Motion to Quash the Applicant's Subpoena (March 26, 1984).

6/ Affidavit of Joseph H. Rodriguez, Esq'., Public Advocate of the State of New Jersey at 6 (March 26,1984) .

n proceeding, contentions must have a basis.1/ If there is no basis, then the contentions should be dismissed. This result is, required by the NRC's rules. -

The purpose of the basis requirement of 10 C.F.R.

S2.714 (b) has been explained as three-fold: (a) to assure that the matter sought to be put into question is not a challenge to the Commission's regulations or an attack upon the basic structure of the Commission's regulatory process; (b) to establish sufficient foundation to warrant further inquiry into the subject matter; and (c) to put the other parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose."1 Compliance with this requirement is particularly important at the operating license stage because an operat-ing license hearing is not mandatory.E! Thus, it must be 7/ 10 C.F.R. 52.714 (b) ; Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 N.R.C. 546 (1983); Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 2), ALAB-662, 14 NRC 1125 (1981); Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521 (1979); Commonwealth Edison Company (Dresden Station, Units 2 and 3), LBP-82-65, 16 NRC 714 (1982).

8/ Cf. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), Docket Nos. 50-443 and 50-444,

" Order" (September 20, 1983) (slip op. at 2).

-9/ Philadephia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).

--10/ Detroit Edison Company (Enrico Fermi Atomic Power (Footnote Continued)

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. t assured that an asserted contention raises an issue which clearly is open to adjudication.11/

Despite this requirement that contentions must have a basis, Mr. Rodriguez, the intervenor in this proceeding, has now admitted under oath that he has "no personal knowledge or specialized technical information beyond the information presented to the Board in support of [ thel contentions." E ,

Mr. Rodriguez further states that his " direct participation was limited to reviewing the proposed petition to intervene, and assuring [himself] that the attorneys had researched the matter thoroughly."NI Finally, he states that his par-2 ticipation was limited to (1) determining that the public interest of New Jersey residents would benefit from the intervention, and (2) participating in meetings, consul-tations, and briefings with two attorneys in his office.E 1

l In sum, Mr. Rodriguez admits that he merely read documents drafted by another attorney and has himself no (Footnote Continued)

Plant, Unit 2), LBP-78-37, 8 NRC 575, 582 (1978);

Cincinnati Gas & Electric Company (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 9 (1976).

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11/ Cincinnati Gas & Electric Company (William H. Zimmer Nuclear Power Station) , ALAB-305, 3 NRC 8, 12 (1976);

Gulf States Utilities Company (River Bend, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).

M/ Affidavit of Joseph H. Rodriguez, Esq., Public Advocate of the State of New Jersey at 6 (March 26, 1984).

j 13/ Id.

14/ Id. at 6-7 (citations omitted).

i personal or technical knowledge of the bases for his 1 cantentions. Thus, as Applicants have suspected throughout,

.t has now been demonstrated that there were no bases for the contentions when filed by the Public Advocate, and that the filings were founded only upon speculation by intervenor's attorneys on technical matters. Accordingly, because there were no bases for the contentions at the time they were admitted, Applicants move that the Board dismiss this proceeding due to the failure of the remaining admitted contentions to have a basis.

Conclusion For the reasons stated above, the Board should dismiss this proceeding.

Respectful * +ed, CONNER & WE P.C.

0*[

Troy B. Co. Jr.

Robert M. Ra.

Counsel for Applicants April 12, 1984 Richard Fryling, Jr., Esq.

Public Service Electric and Gas Company 80 Park Plaza, T5E Newark, New Jersey 07101

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L 00CMETED USNRC UNITED STATES OF AMElg$Aa 16 21 :15 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and L Mef[sh d N 'dd Public Service Electric and )

l Gas Company )

) Docket No. 50-354-OL j (Hope Creek Generating )

, Station) )

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• CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion to Dismiss Proceeding Due to Lack of Bases of Contentions,"

3 dated April 12, 1984 in the captioned matter have been i served upon the following by deposit in the United States

mail on this 12th day of April, 1984

)

• Marshall E. Miller, Esq. Atomic Safety and 1 Chairman Licensing Appeal Panel

} Atomic Safety and U.S. Nuclear Regulatory Licensing Board Panel Commission

U.S. Nuclear Regulatory Washington, D.C. 20555

1 Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel

• Dr. Peter A. Morris U.S. Nuclear Regulatory

] Atomic Safety and Commission

Licensing Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Docketing and Service Washington, D.C. 20555 Section  :

! Office of the Secretary

• Dr. David R. Schin4 U.S. Nuclear Regulatory Atomic Safety and Commission d

Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 L

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• Hand Ds:lisery ,

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• Lee Scott Dewey, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washingtoh, D.C. 20555

• • Richard Fryling, Jr. , Esq.

Associate General Counsel

Public Service Electric &

Gas Company P.O. Box 570 (TSE)

Newark, NJ 07101

• R. William Potter , Esq.

Susan C. Remis, Esq.

State of New Jersey Department of the Public Advocate

! CN 850 j Hughes Justice Complex

, Trenton, New Jersey 08625 Carol Delaney, Esq.

Deputy Attorney General Department of Justice State Office Building 8th Floor i 820 N. French Street Wilmington, DE 19810 l

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CA.

• j lJessica H. Lavertys/

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• Hand Delivery

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• • Federal Express

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