ML19290F183

Response in Opposition to Citizen'S Action for Safe Energy,L Burrell & I Youngheim 800226 Motion to Strike Applicants' Class 9 Accident Pleadings Alleging Lateness.Five Addl Days Granted by Rules When Svc Is by Mail.W/Certificate of Svc

ML19290F183
Person / Time
Site:	Black Fox
Issue date:	03/04/1980
From:	Gallo J, Gibbs M ISHAM, LINCOLN & BEALE, PUBLIC SERVICE CO. OF OKLAHOMA
To:
References
NUDOCS 8003180272
Download: ML19290F183 (8)

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.2 5 gBOP UNITED STATES OF AMERICA

, V.M .~ NUCLEAR REGULATORY COMMISSION E

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tst Before the Commission A

ro c3 In the Matter of the Application of )

Public Service Company of Oklahoma, )

Associated Electric Cooperative, Inc.) Docket Nos. STN 50-556 and ) STN 50-557 Western Farmers Electric Cooperative )

)

(Black Fox Station, Units 1 and 2) )

APPLICANTS' RESPONSE TO INTERVENORS' MOTION TO STRIKE APPLICANTS' PLEADINGS ON THE CLASS 9 ACCIDENT ISSUE Public Service Company of Oklahoma, Associated Electric Cooperative, Inc. and Western Farmers Electric Cooperative (" Applicants") hereby respond to the February 26, 1980 motion of Citizens' Action for Safe Energy, Lawrence Burrell and Ilene Youngheim ("Intervenors") to strike Applicants' pleadings on the Class 9 accident issue on the ground that they were not timely filed. Because Intervenors' motion is without merit, it should be denied.

I. APPLICANTS' PLEADINGS WERE TIMELY FILED IN ACCORDANCE WITH THE PRO-VISIONS OF 10 C.F.R. S 2.710 The instant controversy centers around a decision of the Atomic Safety and Licensing Appeal Board (" Appeal Board") in this docket which directed that the NRC Staff file, within 30 days, a statement expressing its views 80031SO975>

to the Nuclear Regulatory Commission (the "NRC" or the "Com-mission") on the question of whether th consequences of Class 9 accidents should be considered in this case.1/ The other parties to the proceeding were also invited to provide their views on this question to the Commission within 30 days after the NRC Staff's submission. The statement of the Staff was filed on January 7, 1980; Intervenors filed their response on January 17, 1980; the Attorney General of Oklahoma responded on February 6, 1980 and Applicants submitted their pleadings on February 11, 1980. On February 26, 1980, Intervenors com-plained to the Commission that Applicants' pleadings were filed more than 30 days after the NRC Staff's submission and moved to strike them on the ground of lateness.2/

-1/ Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC (December 7, 1979) (Slip op.

at 32).

2/ With respect to such motions, the Appeal Board had occasion to state in Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1) ALAB-424, 6 NRC 122, 125 (1977) that:

"the appeal boards are fully capable of policing

[ timeliness] requirements on their own initia-tive. We experience no difficulty in ascertaining whether a particular submission is timely and, if not, whether an adequate explanation of its untime-liness has been forthcoming. It is thus not neces-sary for a party to bring to our attention that its adversary has not met prescribed time limits."

The Appeal Board also observed that as a general rule motions to strike for untimeliness serve no useful pur-pose unless prejudice can be shown. Id. at 125-126.

Thus, even if Intervenors' allegation of untimeliness has merit (which it does not), the Appeal Board would consider the motion at best unseemly especially since it is apparently motivated by some misguided notion of revenge (Mo tion, p.2) rather than by any legitimate con-cern for Intervenors' interest.

As Applicants' counsel pointed out in a letter to the Secretary of the Commission,3/ Applicants' pleadings on the Class 9 accident question were timely filed in accordance with the provisions of 10 C.F.R. S 2.710. That section of the NRC's Rules and Practice states that if a party is required to take some action after the service of a paper upon him and service of that paper is by mail, five days shall be added to the prescribed time period. \s the Staff's Class 9 position paper was served by mail on January 7, 1980, and Applicants filed their response with the Commission 35 days later on February 11, 1980, it is obvious that the response was timely - 30 days were prescribed by ALAB-573 and five additional days are granted by 5 2.710.

The rule adding five days to time periods when service is by mail is clearly as applicable to pleadings filed in response to an Appeal Board directive as to pleadings which respond to a motion or similar paper. Indeed, a careful review of NRC case law interpreting S 2.710 reveals that there are only two situations in which that rule would not apply. Significantly, the instant case does not come within either of the two exceptions. The first instance in which a party is not entitled to the mailing days provided in S 2.710 is when the Atomic Safety and Licensing Board

-3/ Letter from Joseph Gallo to Samuel A. Chilk dated February 26, 1980.

(" Licensing Board") or other NRC tribunal establishes a fixed date for the filing of pleadings. For example, in Toledo Edison Company (Davis-Besse Nuclear Power Station) ,

LBP-74-70, 8 AEC 582, 583 (1974), the Licensing Board set October 10, 1974 as the deadline for filing responses to a motion and October 20, 1974, for the filing of a reply. No additional days could have been added pursuant to S 2.710.

The only other exception to the general rule allowing mailing days is the case in which the tribunal specifically exempts filings from the dictates of S 2.710. The Commission chose to do that in Edlow International Company (Agent for the Government of India on Application to Export Special Nuclear Material), CLI-76-4, 3 NRC 159 (1976), stating:

Pe:: mission to file supplementary affidavits is hereby granted, those affidavits to be filed at the earliest possible time, with any response by other participants to be filed within five calendar days (10 C.F.R. 2.710 notwithstanding).

Certainly, the Appeal Board knows how to exempt a filing from the provisions of S 2.710. As it did not choose to do so in ALAB-573 with regard to the Class 9 accident pleadings, the only conclusion to be drawn is that the Appeal Board intended S 2.710 to apply here.

II. CONCLUSION For the reasons set forth above, i.tervenors' motion should be denied.

Respectfully submitted,

. Yh w ai J 'n gillllo O ,

Marthi E. Gib5s Two of the Attorneys for Applicants Isham, Lincoln & Beale 1050 17th Street, N.W.

Suite 701 Washington, D.C. 20036 202/833-9730 Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 312/558-7500 March 4, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of the Application of )

Public Service Company of Oklahoma, )

Associated Electric Cooperative, Inc. ) Docket Nos. STN 50-556 and ) STN 50-557 Western Farmers Electric Cooperative )

)

(Black Fox Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the following:

APPLICANTS' RESPONSE TO INTERVENORS' MOTION TO STRIKE APPLICANTS' PLEADINGS ON THE CLASS 9 ACCIDENT ISSUE in.

the above-captioned proceeding was served upon the persons shown below by deposit in the United States mail, first class postage prepaid, this 4th day of March, 1980.

Chairman John F. Ahearne Commissioner Peter A. Bradford U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 washington, D.C. 20555 Commissioner Victor Gilinsky Sheldon J. Wolfe, Esquire U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Pegulatory Commission Commissioner Joseph M. Hendrie Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Mr. Frederick J. Shon, Member Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Commissioner Richard T. Kennedy U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

Dr. Paul W. Purdom, Director Mr. Clyde Wisner Environmental Studies Group NRC Region 4 Drexel University Public Affairs Officer 32nd and Chestnut Streets 611 Ryan Plaza D.-ive Philadelphia, Pennsylvania 19104 Suite 1000 Arlington, Texas 76011 Richard S. Salzman, Chairman Atomic Safety and Licensing Andrew T. Dalton, Esquire Appeal Board 1437 South Main Street U.S. Nuclear Regulatory Room 302 Commission Tulsa, Oklahoma 74119 Washington, D.C. 20555 E2s. Carrie Dickerson Dr. W. Reed Johnson Citizens Action for Safe Atomic Safety and Licensing Energy, Inc. -

Appeal Board P.O. Box 924 U.S. Nuclear Regulatory Claremore, Oklahoma 74107 Commission Washington, D.C. 20555 Mrs. Ilene H. Younghein 3900 Cashion Place Docketing and Service Section Oklahoma City, Oklahoma 73112 Office of the Secretary of the Commission Mr. Lawrence Burrell U.S. Nuclear Regulatory Route 1, Box 197 Commission Fairview, Oklahoma 73737 Washington, D.C. 20555 (20 copies) Mr. Maynard Human General Manager Atomic Safety and Licensing Western Farmers Electric Cooperativ Board Panel P.O. Box 429 U.S. Nuclear Regulatory Andarko, Oklahoma 73005 Commission Washington, D.C. 20555 Mr. Gerald F. Diddle General Manager Atomic Safety and Licensing Associated Electric Cooperative, In Appeal Board Panel P.O. Box 754 U.S. Nuclear Regulatory Springfield, Missouri 65801 Commission Washington, D.C. 20555 Mr. Vaughn L. Conrad Public Service Company of Oklahoma L. Dow Davis, Esquire P.O. Box 201 Counsel for NRC Staff Tulsa, Oklahoma 74102 U.S. Nuclear Regulatory Commission Mr. T. N. Ewing, Manager Washington, D.C. 20555 Black Fox Station Nuclear Project Public Service Company of Oklahoma Joseph R. Farris, Esquire P.O. Box 201 John R. Woodard, III, Esquire Tulsa, Oklahoma 74102 Feldman, Hall, Franden, Reed

& Woodard 816 Enterprise Building Tulsa, Oklahoma 74103

~3-Charles S. Rogers, Esquire Assistant Attorney General 112 State Capitol Building Oklahoma City, Oklahoma 73105 Jo h G/llo