ML19309D309
| ML19309D309 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 03/17/1980 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8004100235 | |
| Download: ML19309D309 (8) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
ASSOCIATED ELECTRIC COOPERATIVE, INC.
)
Docket Nos. STN 50-556 AND
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STN 50-557 WESTERN FARMERS ELECTRIC COOPERATIVE,
)
INC.
)
)
(Black Fox Station, Units 1 and 2)
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NRC STAFF RESPONSE TO INTERVENORS' MOTION TO STRIKE VARIOUS PLEADINGS OF THE APPLICANTS 1.
Introduction and Backaround On February 26, 1980, JointIntervenors1/ filed the instant Motion to Strike the Applicants'U " Motion to Dismiss the Class 9 Inquiry", the Applicants' " Motion to Strike the Response of the [0klahoma State] Attorney General to ALAB-573,"3/
and the Applicants' " Response to Inquiry by Appeal Board concerninn the Need to Consider the Consequences of Class 9 Accidents in this Proceeding", all of which were filed on February 11, 1980. As grounds for such motion, Joint Intervenors assert that "all three [of Applicants' pleadings] were filed beyond the period of time specified by the Appeal Board in ALAB-573",N the parties having been required to submit their responses to the Appeal Board Order 30 days after the Staff's January 7, 1980 Response. Joint Intervenors argue that since the Applicants previously sought to disqualify the State of Oklahoma on the basis of what Intervenors see as " hyper technical procedural requirements", the Applicants
-1/ Joint Intervenors are:. Lawrence Burrell, Eileen Younghein and Citizens Action for Safe Energy.
2] Applicants are: Public Service Company of Oklahoma, Associated Electric Cooperative, Inc., Western Farmers Cooperative, Inc.
-3/ Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 ar.d 2),
ALAB-573, 10 NRC LSlip Op. dated December 7,1979 at 32).
4/ Joint Intervenors' Motion to Strike at 2.
8004100
s similarly should be held to the " strict rules of procedure "EI in the timina of the submission of their three pleadings.
For their part, Applicants argue that their February 11, 1980 submissions were timely since, under 10 C.F.R. 52.710,they are entitled to five additional days time to file their response whenever service is affected by mail as was the case with the Staff's position paper filed on January 7,1980.5/
For the reasons discussed below, the Intervenors' Motion to Strike on the technical grounds of timeliness should be denied.
II.
Discussion Conceptually, Applicants' submissions fall into two general categories under the Comnission's regulations. The Applicants' " Response..." to ALAB-573 is a responsive pleading subject to the provisions of 10 C.F.R. 52.710. The Applicants' Motions to " Strike" and " Dismiss" are not responsive pleadings and therefore fall under the general provisions of 10 C.F.R. 52.730.
For the purpose of analyzing Intervenors' objections on the basis of timeliness, each of these categories are discussed below.
1/ Id.
1/ Joseph Gallo, Counsel for Applicants' letter to Samuel J. Chilk, Secretary USNRC, dated February 26, 1980 and Applicants' Response to Intervenors' Motion to Strike Applicants' Pleadings on the Class 9 Issue dated March 4, 1980.
i A.
The Applicants' Response to ALAB-573 Under 10 C.F.R.12.710, the general rule as to the computation of filing dates is that "[w]henever a party has the right or is required to do sone act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice is served by mail, five (5) days shall be added to the prescribed period."- (emphasis added).
The purpose of this provision is to generally preserve the prescribed time permitted for a responsive pleading rather than to have it curtailed as a result of delays in mail delivery.- It seems clear that, in ALAB-573, the Appeal Board intended that views of parties other than the Staff be responsive to the Staff's pleadings.
Had it intended otherwise, we believe that the Appeal Board would have directed concurrent submission of the parties' views. Accordingly, when the Appeal Board in ALAB-573 directed the Staff to " advise the Commission promptly (within 30 days) of the reasons why it believes the consequences of Class 9 accidents should or should not be considered in this case",EI and the Staff filed its l
January 7, 1980 response,El the thirty day response period set forth in ALAB-573 for the filing of replies by other parties was triggered.
And since the Staff pleading was served by mail, under the provision of 10 C.F.R. 52.710, the Applicants and the other parties were required to respond to the Staff pleading within the " prescribed period" of 30 days set by the Appeal Board, plus an additional 5 days to account for mailing by the Staff.
Accordingly, 7/ But time periods "may for good cause be extended or shortened by the Commission or the presiding officer, or by stipulation approved by the Comission or the presiding officer." 10 C.F.R. 52.711.
~8/ The Statement of Consideration states that the NRC " intended 52.710 to generally govern computation of time, including the provision for additional time for mailino." 44 Fed. R3 4459 (January 22,1979).
(emphasis added)
'~9/ Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2),
ALAB-573, 10 NRC LSlip Op. dated December 7, 1979 at 32). (emphasis in original, footnote omitted).
-10/ Staff Statement of Position on Need to Consider Class 9 Events Pursuant to Direction on ALAB-573 dated January 7, 1980 at 5.
i,
i the Staff agrees with the Applicants that absent a contrary indication or date i
certain set for response, the Appeal Board intended the usual response provisions to apply and the other parties to respond to the Staff pleadings by February 11, 1980.11/
Even assuming, arauendo, that this interpretation of the Appeal Board's Order in this matter is incorrect, a striking of the Applicants' Response to ALAB-573 is not warranted under current case law. As the Appeal Board pointed out in the Wolf Creek decision, in the analogous context of striking untimely exceptions and briefs in supoort thereof on appeal, the document objected to must not 4
be in " substantial compliance" with applicable rules and "must bring about i
significant prejudice to the other parties" before a motion to strike will prevail.12/
In the instant case, the Intervenors have made no such showing that the departure from the filing rules were substantial (a difference of only 3 working days was involved) or that they will be prejudiced in any way.
Accordingly, even if a technical violation of the Appeal Board's Order were considered to exist, it is insubstantial timewise and non-prejudical in effect.
Therefore, Intervenors' Motion to Strike should be denied.
11/ The Comnission's February 20, 1980 Order accepted certification of the
~~~
Appendix I question (not relevant here) sent it by the Appeal Board in ALAB-573 and in extending its time for review of ALAB-573 in the same order, commented in passing on the filing deadline discussed above.
The NRC Staff believes that in the context in which it was raised, the Commission did not intend to set February.6, 1980 as a date certain j
for filing responses by the parties.
--12/ Kansas Gas and Electric Co., et al. (Wolf Creek Generating Station, Unit l
- 1) ALAB-424, 6 NRC 122, 125-126 (1977).
See 10 C.F.R. 52.762(e).
i me*
r w
wr4
B.
The Applicants' Motions to Strike and Dismiss Applicants' Motions to Strike and Dismiss are not "dct[s]" " required to be taken within a prescribed period" themselves and thus are not subject to the provisions of 10 C.F.R. 52.710 as to timeliness.]3/
Instead, the provisions of 10 C.F.R. 92.730 of the Commission's regulations govern these motions, and are silent as to when motions must be filed. Accordingly, in the absence of any specific time period for filing provided in the rules, the Applicants' motions would not be objectionable as long as they were filed within a reason-able time period after the grounds for the motion arose. Applicants' February ll, 1980 Motion to Strike, coming only two days after the Response of the Attorney General was filed, certainly falls within that period of reasonableness and for this reason should not be stricken on these grounds.
The Applicants' Motion to Dismiss the Class 9 Inquiry, which came some two months after the Appeal Board's decision in ALAB-573 ordered the parties to respond to the Commission with their views on Class 9 accidents, arguably might not have been timely filed.
However, even atiuming arguendo that the Motion to Dismiss is untimely, Intervenors' Motion to Strike should not be granted without a showing of substantial prejudice to them under the rationale 1
of the Wolf Creek decision, supra. Since such a showing was not made Intervenors' Motion to Strike the Applicants' Motion to Dismiss should also be denied.
l
~~~73/ Of course, in computing the time for reply to Applicants' Motions, the provisions of 10 C.F.R. 52.710 would be applicable.
r
t Conclusion For the foregoing reasons, the Staff believes the.t the Applicants' Response to ALAB-573 and its Motion to Strike the Raspciise of the Attorney General of the State of Oklahoma were not filed out of time.
However, even if they were out of time, Intervenors have shown no " substantial prejudice" from these late filings sufficient to warrant dismissal of those pleadings.
Likewise, even if the Applicants' Motion to Dismiss the Class 9 Inquiry were considered to be filed out of time,since no prejudice to the Intervenors has been shown, that pleading should not be dismissed. ~~~14/
Accordingly, Intervenors' Motion to Strike Applicants' three pleadings should be denied.
Respectfully submitted,
\\
s60L0 L. Dow Davis Counsel for NRC Staff Dated at Bethesda, Maryland this 17th day of March, 1980
~~~14/While the Staff does not object to the Applicants' Motion procedurally as was noted in our Staff Response to Applicants' Motion to Dismiss
'the Class 9 Inquiry dated March 3, 1980, the Staff does oppose the Applicants' Motion on the merits.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
ASSOCIATED ELECTRIC COOPERATIVE, INC.
)
Docket Nos. STN 50-556 AND
)
STN 50-557 WESTERN FARMERS ELECTRIC COOPERATIVE,
)
INC.
(Black Fox Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION TO STRIKE VARIOUS PLEADINGS OF THE APPLICANTS" in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, at indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal nail system, this 17th day of March, 1980:
- John F. Ahearne, Chairman
- Dr. W. Recd Johnson U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Washington, D. C.
20555 Board U. S. Nuclear Regulatory Commission
- Dr. Victor Gilinsky Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Jerome E. Sharfman, Esq.
Atomic Safety and Licensir.g Appeal
- Mr. Richard T. Kennedy Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555
- Dr. Joseph M. Hendrie
- Sheldon J. Wolfe, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Peter A. Bradford U.S. Nuclear Regulatory Commission
- Mr. Frederick J. Shon Washington, D. C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
- Richard S. Salzman, Chairman Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Dr. Paul W. Purdom U.S. Nuclear Regulatory Commission Director, Environmental Studies Group Washington, D. C.
20555 Drexel University 32nd and Chestnut Street Richard B. Hubbard Philadelphia, Pennsylvania 19104 MHB Technical Associates 1723 Hamilton Avenue Suite K San Jose, California 95125 Joseph Gallo, Esq.
i Isham, Lincoln & Beale Mr. Vaughn L. Conrad 1120 Connecticut Avenue, N.W.
Public Service Company of Oklahoma Suite 325 P. O. Box 201 Wasnington, D. C.
20036 Tulsa, Oklahoma 74102 Michael I. Miller, Esq.
Joseph R. Farris, Esq.
Isham, Lincoln & Beale John R. Woodard III, Esq.
One 1st National Plaza Feldman, Hall, Franden, Reed Suite 2400 and Woodard Chicago, Illinois 60606 816 Enterprise Building Tulsa, Oklahoma 74103 Mrs. Carrie Dickerson Citizens Action for Safe Engery, Inc.
Alan P. Bielawski P.O. Box 924 Isham, Lincoln & Beale Claremore, Oklahoma 74107 One First National Plaza Suite 4200 Jan Eric Cartwright, Esq. &
Chicago, Illinois 60603 Charles S. Rogers Attorney General Mr. Gerald F. Diddle State of Oklahoma General Manager 112 state Capitol Building Associated Electric Cooperative, Inc.
Oklahoma City, Oklahoma 73105 P. O. Box 754 Springfield, Missouri 65801 Mr. Clyde Wisner NRC Region 4 Mr. Maynard Human Public Affairs Officer General Manager 611 Ryan Plaza Drive Western Farmers Coop., Inc.
Suite 1000 P.O. Box 429 Arlington, Texas 76011 Anadarko, Oklahoma 73005 Andrew T. Dalton, Jr., Esq.
- Atomic Safety and Licensing Appeal Board Attorney at Law U.S. Nuclear Regulatory Commission 1437 South Main Street, Rm. 302 Washington, D. C.
20555 Tulsa, Oklahoma 74119
- Atomic Safety and Licensing Board Panel Mrs. Ilene H. Younghein U.S. Nuclear Regulatory Commission 3900 Cashion Place Washington, D. C.
20555 Oklahoma City, Oklahoma 73112
- Docketing and Service Section Martha E. Gibbs, Esq.
Office of the Secretary Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission One First National Plaza Washington, D. C.
20555 Suite 4200 Chicago, Illinois 60603 Dr. M. J. Robinson Black & Veatch Lawrence Burrell P. O. Box 8405 Route 1, Box 197 Kansas City, Missouri 64114 Fairview, Oklahoma 73737 Mr. T. N. Ewing Acting Director Black Fox Station Nuclear Project i
N Public Service Company of Oklahoma L.'Dow Davis P.O. Box 201 Counsel for NRC Staff Tulsa, Oklahoma 74102
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