ML19210C358
| ML19210C358 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 10/29/1979 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CITIZENS ENERGY FORUM, Potomac Alliance |
| References | |
| ALAB-568, NUDOCS 7911140130 | |
| Download: ML19210C358 (5) | |
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A UNITED STATES OF AMERICA g
NUCLEAR REGULATORY COMMISSION
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'9 ATOMIC SAFETY AND LICENSING APPEAL BOARD
- gen Alan S. Rosenthal, Chairman N
f7 Dr. John H. Buck c
Dr. Lawrence R. Quarles
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In the Matter of
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Docket Nos. 50'338SP
)50-339SP VIRGINIA ELECTRIC AND POWER COMPANY
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(Proposed Amendment to (North Anna Nuclear Power Station,
)
Operating License NPF-4 Units 1 and 2)
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to Permit Storage Pool
)
Modification)
MEMORANDUM AND ORDER October 29, 1979 (ALAB-568)
Pefore us are the exceptions of intervenors Potomac Alli-ance and Citizens Energy Forum, Inc., from the actions of the Licensing Board announced in its Augu?'. 6, 1979 issdance en-titled " Board Decisions".
The deadline for the filing of their brief in support of those exceptions was October 10, 1979.
The brief was not filed by that date; nor did intervenors apply for an extension of briefing time.
Accordingly, on October 17 we entered an orde-directing the intervenors to show cause by October 26 why weir exceptions should not be dismissed for want of diligent prosecution.
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,. Rather than respond directly to the October 17 order, intervenors submitted their brief on October 26, accompanied by a motion for leave to file it out-of-time.
The motion recites, inter alia, that, since the date upon which their exceptions had been filed, intervenors' counsel "has been extensively involved in [other] matters both before the Com-mission and against the Commission in federal courts".
In this connection, we are told that counsel is providing his services in these various proceedings without compensation,
" requiring him to hold full-time employment elsewhere"; and that he does not have the benefit of the assistance of co-counsel.
Finally, the motion suggests the absence of any prej-udice to the applicant or the NRC staff stemming from the un-timely filing (in view of the fact that the operating license amendment sought by the applicant and authorized by the Li-censing Board has already issued).
We are prepared to accept each of these representations.
What is left unexplained, however, is why counsel did not observe the procedures set forth in Section IX(d) (3) of the Appendix te the Commission's Rules of Practice b!:
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
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. limits in the particular case.
Absent a showing of extraordinary and unanticipated circumstances, motions for extensions of time must be received hv 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 it is accom-panied by a motion for leave to file it out of time, which similarly must be founded upon extraordinary and unanticipated cir-cumstances.
Manifestly, none of the circumstances to which the motion alludes was both " extraordinary and unanticipated".
To the contrary, it appears from the motion that counsel was fully aware well in advance of the filing deadline that he would not be able to meet that deadline.
This being so, he was duty-bound to seek an extension of briefing time sufficiently in advance of October 10 to enable us to act seasonably upon the appliention.
It might be added that substantial practical considera-tions underlie the procedural requirement which went unful-filled in this instance.
Among other things, the proper management of our docket is obviously impeded if a briefing aadline passes without the receipt of either the brief or a timely application for an extension of the time witt.in which to file it:
in such circumstances we are left in the dark respecting whether the litigant has decided not to participate
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, further in the proceeding 2/ or, instead, proposes to tender an untimely submission at some unspecified future date --
perhaps weeks or even months in the offing.
To be sure, we might call upon the Secretary to the Board to make inquiry of counsel respecting his intentions in the matter.
But there is no apparent good reason why our staff should be burdened with undertakings of that character.
Rather, the r'sponsibility appropriately lies with the litigants.
In short, we take the Section IX(d) (3) mandate seriously and expect those practicing before us to do likewise.
None theless, on this occasion we have decided to grant the intervenors' motion and to accept their untimely brief.
In doing so, we are influenced by counsel's seeming inexperi-ence in the conduct of adjudicatory proceedings, as well as his assurance that what transpired here will not prove indic-ative of " future performance" on his part.
The intervenors' motion for leave to file their brier out-of-time is granted; the period provided by 10 CFR 2.762 (b)
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Which, in the case of an appellant, means the abandon-ment of its appeal.
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. for the iling of responsive briefs shall be deemed to have commenced to run upon the date of service of this order.
It is so ORDERED.
FOR THE APPEAL BOARD b.b=.3 C. Je q B.ishop
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Secret #ry to the Appeal Board Dr. Quarles did not participate in this order.
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