ML20041A145
| ML20041A145 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/18/1982 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8202190162 | |
| Download: ML20041A145 (7) | |
Text
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02/18/82 g
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UNITED STATES OF AMERICA P
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?!UCLEAR REGULATORY COMMISSION RECEIVED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD a]
FEBI'019825 [8 md7' In the Matter of
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CONSOLIDATED EDISON COMPANY
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Docket Nos. 50-247-SP t
b 0F NEW YORK (Indian Point, Unit 2) )
50-286-SP U
POWER AUTHORITY OF THE STATE OF
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NEW YORK (Indian Point, Unit 3)
)
NRC STAFF MOTION TO STRIKE UCS/NYPIRG OBJECTIONS, AND IN THE ALTERNATIVE, MOTION FOR TIME TO REPLY I.
INTRODUCTION On January 29, 1982, UCS/NYPIRG filed a document entitled "UCS/NYPIRG Objections To Answers Submitted by Licensees and Staff to the Connission Questions" (hereinafter UCS/NYPIRG Objections). The Staff moves this Board to strike this docunent on the grounds that: 1) UCS/NYPIFG lacks standing to file such a document; 2) it fails to comply with the Board's
!!emorandum and Order (Practice and Procedures) dated December 21, 1981 and Commission precedent; and 3) the document is procedurally inappropriate.
In the alternative, if the Board determines that UCS/NYPIRG's document should be considered by the Board as a motion, the Staff respectfully moves for ten (10) days from service of the order to reply to the motion.
II.
BACKGROUND On December 2,1981, the Board directed the Staff and Licensees to file statements of position with regard to the Commission's six questions by December 31, 1981.
Tr. 129. The Staff complied with this directive.
On January 29, approximately a month after the Staff's statement of position was filed, UCS/NYPIRG filed objections to the Staff's statement
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. of position. On the last page of their objections, UCS/NYPIRG " requests the Beard to issue and [ sic] order requiring the Licensees and the Staff to supplement their responses and release to intervenors copies of the studies and analyses upon which their answers rely so heavily, even if these are in draft form."
III. DISCUSSION A.
UCS/NYPIRG Lacks Standing to File Objections The Board has not given any petitioners the opportunity to f'46 responsive pleadings to the statements of position ordered by the Board on December 2, 1981. UCS/NYPIRG's document, in view of its request, must be viewed as being in the nature of a motion, such as, a motion to compel supplementation of Staff responses. At this stage of the proceeding UCS/NYPIRG is not entitled to file any motions relating to subsequent stages of the proceeding, such as discovery, since they are not yet parties to this proceeding and discovery has not yet begun. See 10 C.F.R.
QS 2.740(f)(1) and 2.744(a).
In fact, the Staff's statement of position was submitted in response to a Board directive and not in response to any request by a petitioner or party to the proceeding. Therefore, UCS/NYPIRG lacks standing to file objections to the Staff's statement of position, i
or to request that the Board take further action with regard to those statements of position.
B.
The Document filed by UCS/NYPIRG Fails to Comply with the Board's Order Setting Forth Practices and Procedures and Commission Precedent On December 21, 1981, this Licensing Board issued an Order setting forth the procedures to be followed with respect to the filing of documents in this proceeding.
In that Order, the Board stated:
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. "E.
The title of each document should, at the start, succinctly identify the filing party and the matter 1
'being addressed."
l 1
This is consistent with the Appeal Board's discussion in Duke Power Co.
(Cherokee Nuclear Station,' Units 1, 2 and 3), ALAB-457, 7 NRC 70, 71-(1978).
i In Cherokee, the Appeal Board stated, when faced with a document similar to
.the one filed here:
-...we will expect the caption of every future filing in which l
certain immediate affirmative relief is being requested to make reference to that fact explicitly by adverting to the relief sought and including the word ' motion.'"
The title of UCS/NYPIRG's document leads one to believe that they are merely objecting to the answers filed by the Licensees and the Staff with-out requesting the Board to take any action concerning such answers.
In i
fact, at the end of the document they request the Board to issue an order
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requiring the Staff and the Licensees to supplement their previous filings. This request is not at all reflected in the document's title and the Board and parties are not put on notice as to the possible need for action by either the Board or other parties regarding the UCS/NYPIRG's objections. Therefore, UCS/NYPIRG has failed.to comply with the Board's December 21, 1981 Memorandum and Order and Consnission precedent. Their-document should be stricken.
C.
This document should be Stricken as Premature Even if UCS/NYPIRG were a party to this proceeding, its document would be prenature.
Interpretation is necessary to deternine the nature of UCS/NYPIRG's document.
It must be interpreted as being in the nature of a motion to compel discovery. Such motions are premature, since discovery has not been opened by the Board.
In addition, UCS/NYPIRG has not filed any discovery requests upon the Staff or the Licensees. Therefore, no motion
, to compel is appropriate.
10 C.F.R. 5 2.740(f)(1).
It should also be noted that motions to compel the Staff to produce documents are not governed by 10 C.F.R. 5 2.740(f). See 10 C.F.R. Q 2.740(f)(3).
If the Staff refuses to produce documents not available pursuant to 10 C.F.R. 5 2.790, the remedy lies under 5 2.744. Since there is no pending discovery request to the Staff pursuant to 10 C.F.R. 5 2.744, these objections are procedurally inappropriate and should be stricken.
IV. CONCLUSION For the reasons set forth above, UCS/NYPIRG's objections to the statements of position of the Staff and Licensees should be stricken.
If the Board determines that UCS/NYPIRG's filing should indeed be treated as a motion, the Staff moves tne Board for ten (10) days from service of the order containing such determination to reply to UCS/NYPIRG's motion.
Respectfully submitted.
U GJ KQ2_ _ (Y) (Yt43a Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of February, 1982.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COP 9tISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
CONSOLIDATED EDIS0N COMPANY Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2) 50-286-SP POWER AUTHORITY OF THE STATE OF.
)
NEW. YORK (IndianPoint, Unit 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF MOTION TO STRIKE LICS/NYPIRG OBJECTIONS, AND IN THE ALTERNATIVE, M0T]DN FOR TIME TO REPLY in the above-captioned pro-ceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of February, 1982.
Louis J. Carter, Esq., Chairman Paul F. Colarulli, Esq.
Administrative Judge Joseph J. Levin, Jr., Esq.
i Atomic Safety and Licensing Board Pamela S. Horowitz, Esq.
U.S. Nuclear Regulatory Comission Charles Morgan, Jr., Esq.
Morgan Associated, Chartered Washington, D.C.
20555
- l 1899 L Street, N.W.
Dr. Oscar H. Paris Washington, D.C.
20036 Administrative Judge Atomic Safety and Licensing Board Charles M. Pratt, Esq.
U.S. Nuclear Regulatory Comission Thomas R. Frey, Esq.
Power Authority of the State Washington, D.C.
20555
10319 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Ellyn R. Weiss, Esq.
William S. Jordan, III, Esq.
Washington, D.C.
20555
- Hamon & Weiss i
Brent L. Brandenburg, Esq.
1725 I Street, N.W., Suite 506
. ashington, D.C.
20006 W
Assistant General. Counsel Consolidated Edison Co. of New York, Inc.
Joan Holt, Project Director 4 Irving Place Indian Point Project New York, N.Y.
10003 New York Public Interest j
Research Group i
. Mayor George V. Begany 5 Beekman Street Village of Buchanan New York, N.Y.
10038 236 Tate Avenue Buchanan, N.Y.
10511 7
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- -, - _ ~ - -,
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. John Gilroy, Westchester Coordinator Stanley B. Klimberg Indian Point Project General Counsel New York Public Interest New York State Energy Office Research. Group 2 Rockefeller State Plaza 240 Central Avenue Albany, N.Y.
12223 White Plains, N.Y.
10606 Marc L. Parris, Esq.
Jeffrey M. Blum, Esq.
County Attorney New York University Law School County of Rockland 423 Vanderbuilt Hall 11 New Hempstead Road 40 Washington Square South New City, N.Y.
10956 New York, N,Y.
10012 Geoffrey Cobb Ryan Charles J. Maikish, Esq.
Conservation Ccmmittee Litigation Division Chairman, Director The Port Authority of New York City Audubon Society New York and New Jersey 71 West 23rd Street, Suite 1828 One World Trade Center New York, N.Y.
10010 New York, N.Y.
10048 Greater New York Council on Ezra I. Bialik, Esq.
Energy Steve Leipsiz, Esq.
c/o Dean R. Corren, Director Environmental Protection Bureau New York University New York State Attorney 26 Stuyvesant Street General's Office New York, N.Y.
10003 Two World Trade Center New York, N.Y.
10047 Honorable Richard L. Brodsky Member of the County Legislature Alfred B. Del Bello Westchester County Westchester County Executive County Office Building Westchester County White Plains, N.Y.
10601 148 Martine Avenue New York, N.Y.
10601 Pat Posner, Spokesperson Parents Concerned About Andrew S. Roffe, Esq.
Indian Point New York State Assembly P.O. Box 125 Albany, N.Y.
12248 Croton-on-Hudson, N.Y.
10520 Renee Schwartz, Esq.
Charles A. Scheiner, Botein, Hays, Sklar & Herzberg Co-Chairperson Attorneys for. Metropolitan Westchester People's Action Transportation Authority Coalition, Inc.
200 Park Avenue P.O. Box 488 New York, N.Y.
10166 White Plains, N.Y.
10602 Honorable Ruth Messinger Lorna Salzman Member of the Council of the Mid-Atlantic Representative City of New York Friends of the Earth, Inc.
District #4 208 West 13th Street City Hall New York, N.Y.
10011 New York, N.Y.
10007
.. Alan Latman, Esq.
44 Sunset Drive Croton-on-Hudson, N.Y.
10520 Zipporah S. Fleisher West Branch Conservation Association 443 Buena Vista Road New City, N.Y.
10956 Judith Kessler, Coordinator Rockland Citizens for Safe Energy 300 New Hempstead Road New City, N.Y.
10956 David H. Pikus, Esq.
Richard F. Czaja, Esq.
330 Madison Avenue New York, N.Y.
10017 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- TNSE Janice E. Moore Counsel for NRC Staff
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