ML18127A257
| ML18127A257 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 06/17/1975 |
| From: | Reis H Florida Power & Light Co, Lowenstein, Newman, Reis & Axelrad |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| Download: ML18127A257 (10) | |
Text
UNXTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSXON BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
FLORIDA POWER AND LIGHT COMPANY ) DOCKET NO 0-389
)
St. Lucie Plant, Unit No. 2 )
)
OPPOSITION TO REQUEST FOR FURTHER EXTENSION OF TIME TO BRIEF EXCEPTIONS In a Motion dated June 12, 1975, postmarked Jun'e '13, 1975, and received by Applicants'* counsel on June 16, 1975, Intervenors request an indeterminate extension of time to brief their exceptions.
1/
Applicant hereby opposes the request on the merits and because it Il is untimely.
The brief supporti'ng the numerous exceptions filed by the 2/
Intervenors was originally due on May 19, 1975. However, in 1/ The Motion recites that Applicants'ounsel stated that they were
'unable to agree to any extension of time for bri'efing exceptions."
On June 12, 1975, Applicants'ounsel were asked orally to agree to a two-week extension beyond June 13. No lesser extension (e.g.,
.a few days to complete a brief already commenced) was suggested to Applicants'ounsel, a'nd their failure to..assent related only to the two-week extension suggested to them.
2/ The exceptions were filed on May 2, 1975. Accordingly, the brief would ordinarily have been due 15 days thereafter, May 17.
10 CFR 52.762(a). However, that day was a Saturday.
the brief was due on Monday, May Accordingly,'9.
10 CFR g2.710.
I ALAB-274, pp. 4-5 (May 28, 1975), an extension until June 13, 1975 was granted. Accordingly, Intervenors have already received a 25-day extension.
The sole basis for the request for the additional extension is that Intervenors'ounsel, already heavily burdened, is preparing for a Florida State Site Certification proceeding scheduled to commence on June 16, 1975, and he is also required to participate 3/
in a related suit in the United States District Court. However, the Appeal Board has stated "counsel who participate in AEC [now NRC] proceedings have an obligation not to over-extend their commitments so as to frustrate the objective of bringing licensing 4/
proceedings to a conclusion within a reasonable time frame.
Consumers Power Com an (Midland Plant, Units 1 and 2), ALAB-123, RAI-73-5, 331, 353 (May 23, 1973). It. is only if this obligation is enforced that, other participants in such proceedings will be relieved of unreasonable delay and expense; and it is only where this obligation is met that the requirements of administrative efficiency and expedition will be accommodated.
3/ The status of that suit and the burden it has or will impose upon Intervenors'ounsel is not set forth.
4/ The Motion states that the Intervenors "cannot afford to hire
~
additional legal assistance." Not a single iota of evidence con-cerning the financial status of any of the Intervenors has been offered, and for all that appears, the failure to hire additional counsel merely represents a desire to avoid bearing "costs to the extent of Intervenors'apabilities." Consumers Power Compan (Midland Plant, Units 1 and 2), CLI-74-26, RAI-74-7, 1, 2 (July 10, 1974) .
In addition to lacking merit, the Motion is out of time.
The Appeal Board has advised counsel that:
"Equally important, we do not approve of the practice of submitting motions for extensions of time by mail on the date the substantive document is due for filing.
To be sure, the Commission's rules provide that docu-ments are deemed filed when mailed. 10 CFR 2.701(c) .
But when the document being filed is a motion for an extension of time, rather than the substantive document itself, we think it appropriate that the motion be transmitted in sufficient time to be in our hands no later than the day before the substantive document is due. We have previously expressed our expectation that this practice would generally be followed, and the Appendix to a recently-revised section of the rules specifically requires that it be followed in connection with appeals from initial decisions."
Hereafter, we will view the failure to follow this practice in connection with ~an motion for an exten-sion of time as providing a sufficient basis, in and of itself, for denying the motion. Any motion which is not transmitted in compliance with the time frame set out above must contain, in addition to the reasons relied upon to justify the extension, a showing of good cause for the failure to transmit the motion in timely fashion." (footnotes omitted; emphasis in original)
Louisiana Power 6 Li ht Co. (Waterford Steam Electric Station, Unit 3, ALAB 117 RAI 73 4g 261 262 (April 20'973) And 10 CFRg Part. 2, Appendix A, ([IX(d)(3) provides in pertinent part:
"There must be strict compliance with the time limits prescribed for the filing of exceptions or briefs by the rules of practice or by an order of the Appeal Board which extends or shortens those limits in the particular case. Absent a showing of ext'raordinary and unanticipated circumstances, motions for exten-sions of time must be received by the Appeal Board at least 1 day prior to the date upon which the document in question is then due for filing. In no circumstances will a document be accepted by the Appeal Board on an untimely basis unless accompanied by a motion for leave to file ititis out of time, which similarly must be founded upon extraordinary and unanticipated circumstances.
1 ALAB-274 cited (p. 4, no. 4) both the Waterford decision and para. IX(d)(3). It also expressly informed the Intervenors of their obligation to "file the required brief by that date
[June 13, 1975] unless they have previously submitted and we have granted a motion for further extension of their briefing time.
(footnote omitted.).
This admonition has simply been ignored. Obviously the Board would be most unlikely to receive and be in a position to grant a motion on June 13 if it was not mailed until June 12, particularly under circumstances
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where it might not even be forwarded from the local post office until June 13. Moreover, no good cause for the delay in making the request -'- let alone extraordinary and unanticipated circumstances" -- is even suggested in the Motion. The Intervenors have long known of the existence of the proceedings now claimed to occupy their counsels'ime. The District Court litigation was commenced on Nay 15, 1975. The Florida Site Certify'.cation hearing has been scheduled to commence 5/
on June 16 since at least May 7.
5/, See pleadings in Martin County Conservation Alliance v. Florida Power 6 Li ht Com an , S.D. Fla. Miami Division) Case No. 75-821-CIV-CA; see also schedule contained in "Pre-Hearing Conference Order," dated May 7, 1975, p. 5 in re Florida Power S Li ht Com any, State of Florida Division of Adminzstratxve Hearings, Case No.75-006.
f t C The effect of the delay in requesting the extension is to place the Board in the position of either enforcing its rules rules which were carefully called to Xntervenors'ttention -- or to appear to be unduly severe with professedly disadvantaged parties. This Board should not permit itself to be so manipulated.
For the foregoing reasons, the Motion. should: be" denied.
Respectfully submitted, LOWENSTEXN I NEWMAN~ REXS AXELROD Co-Counsel for Applicant June 17, 1975 By Harold F. Reis
(
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Xn th.e Matter of
}
FLORIDA POWER AND LIGHT COMPANY } DOCKET NO. 50-389
).
(St. Lucre Nuclear Power Plant/ )
Unit 2)
CERTlPICATE OF SERVICE I hereby certify that copies of the foregoing, "Opposition to Request for Further Extension of Time to Brief Exceptions," dated June 17, 1975, have been served on the persons listed on the attached Service List by deposit in the United States mail, first class or air mail, this 17th day of June, 1975.
Harold F. Reis Co-Counsel for Applicant Lowenstein, Newman, Reis a Axelrad 1025 Connecticut Avenue, N.W.
Washington, D. C. 20036
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMXSSION Xn the Matter of ) .
)
FLORIDA POWER AND LIGHT COMPANY ) DOCKET NO. 50-389
)
(St. Lucie Nuclear Power Plant, )
Unit 2) )
SERVICE LXST Mr. C.R. Stephens Supervisor, Docketing and Service Section Office of the Secretary of the Commission Nuclear Regulatory Commission Washington, D.C. 20555 Michael C. Farrar, Esq.
Chairman Atomic Safety a Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555 Dr. W. Reed Johnson Atomic Safety E Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555 Richard S. Salzman,'sq.
Atomic Safety & Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C. 20555 Alan S. Rosenthal, Esq.
Chairman, Atomic Safety G Licensing Appeal Panel Nuclear Regulatory Commission Washington, D.C. 20555 Edward Luton, Esq.
Chairman, Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel Nuclear Regula ory Commission Washington, D.C. 20555
Michael Glaser, Esq.
Alternate Chairman Atomic Safety and Licensing Board 1150 17th Street, N.W.
Washington, D.C. 20036 Dr. Marvin M. Mann Technical Advisor Atomic Safety & Licensing Board Nuclear Regulatory Commission Washington, D.C. 20555 Dr. David L. Hetrick Professor'of Nuclear Engineering University of Arizona Tucson, Arizona 85721 Dr. Frank F. Hooper Chairman, Resource Ecology Program School of Natural of Michigan Resources-'niversity Ann Arbor, Michigan 48104 Mr. Angelo Giambusso Deputy Director for Reactor Projects Nuclear Regulatory Commission Washington, D.C. 20555 Perry B. Seiffert, Esq.
Counsel for NRC Regulatory Staff Nuclear Regulatory Commission Washington, D.C. 20555 Martin Harold Hodder, Esq.
1130 N.E. 86th Street Miami, Florida 33138 Norman A. Coll, Esq.
Co-Counsel for Applicant Steel, Hector & Davis 1400 Southeast First National Bank Building Miami, Florida 33131 Local Public Document Room Xndian River Junior College Library 3209 Virginia Avenue Ft. Pierce, Florida 33450