ML19318A511
| ML19318A511 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 06/19/1980 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8006230248 | |
| Download: ML19318A511 (8) | |
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t 6/19/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos. STN-50-488 DUKE POWER COMPANY
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STN 50-489
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STN 50-490 (Perkins Nuclear Station,
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Units 1, 2 and 3)
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NRC STAFF OPPOSITION TO INTERVENORS' MOTION TO EXTEND TIME FOR FILING EXCEPTIONS INTRODUCTION
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On February 22, 1980, the Licensing Board, after an evidentiary hearing held January 29 through February 2,1979, in Mocksville, North Carolina, issued its Partial Initial Decision on sites alternative (hereinafter PIDSA) to the designated Perkins site. The Licensing Board concluded that there is no site obviously superior to the Perkins site which is located on the Yadkin River in North Carolina.
(PIDSA Paragraph 70.) By Order dated March 4, 198i), the Appeal Board tolled the time period within which exceptions to the PIDSA must be filed. By further Order dated May 30, 1980, the Appeal Board directed that any exceptions _to the PIDSA shall be filed on or before June 23, 1980.
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On June 6,1980, the Intervenors filed a motion to reconsider or reopen the record with the Licensing Board, the basis for such motion being a late petition to intervene filed by David Springer.
On June 11, 1980, the Inter-venors have moved to exter.d their time to file exceptions to August 25, 1980, the basis being their motion to reopen the record. The NRC Staff opposes the motion to extend the Intervenors' time to file exceptions upon the follow'ng bases.
s DISCUSSION Extensions of time to file exceptions to an initial decision are governed by 10 C.F.R. 5 2.711.
That section specifically requires " good cause" for the granting of an extension of time for filing, fn Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-154, 6 AEC 827 (1973), the Appeal Board emphasized the basic necessity for " good cause" even though the parties may agree among themselves that time to file may be extended.
The Intervenors attempt to e.cet the " good cause" requirement of 10 C.F.R.
Q 2.711 by asserting that they have filed a motion to reconsider or reopen the recordM with the Licensing' Board.
In Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC'645, 647 (1974), the Appeal Board t
found that the filing of a motion to reconsider could constitute " good cause." Therefore, it is necessary to examine the motion to reconsider or
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Motion dated June 6, 1980.
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reopen filed by the Intervenors on June 6,1980 and now pending before the Licensing Board in light of present standards.
A recent and very complete exposition of the standards for reopening the record occurs in Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21 and 22 (1978).
In summary, Intervenors must demonstrate that reopening might alter the result in some material respect, that the matter is significant, that the matter is of such gravity that the public interest demands further exploration and the motion must be timely presented, and that these requirements impose a heavy burden upon the party seeking to reopen.
Kansas City Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7,NRC 320, 378 (1978).
Here the Intervenors motion to reopen fails completely to meet any of the above s tanda rds.
The PIDSA was issued February 22, 1980, some 122 days ago, and the motion to reopen or reconsider is defective on its face.
(See also 10 C.F.R. 6 2.771 which requires that a motion to reconsider be filed within 10 days of the date of the decision.) The Intervenors in their motion make no showing of any signifidant matter in the PIDSA or in the record, only incorporating a late petition to intervene filed by David Springer.
This incorporation by reference of a' docume.nt filed by a nonparty seems, at best, to be of doubtful propriety.
Moreover, the substance of the Springer position and its accompanying affi-davits do not set forth a significant issue which could change the result of L_
the decision.2/ In addition to failing to meet the threshold requirements set forth in Three Mile Island, supra, the Intervenors' motion to reconsider is not timely.
20 C.F.R. 9 2.771 provides that such a motion must be filed within 10 days of the decision, thus, Intervenors' motion which was filed approximately 106 days af ter the decision, and not being accompanied by a motion for leave to file out of time, is subject to dismissal.
See Cincinnati Gas and Electric Co., et al. (Wm. H. Zimmer Nuclear Power Station), ALAB-595 (June 9, 1980), advance sheet p. 11 and cases cited therein.
Thus, it stretches the Midland decision, supra, beyond proportion to hold that an untimely motion to reconsider filed below which is defective on its face can make the required strong showing of good cause for an extension of time in which to file exceptions on appeal.
Not meeting even threshold requirements for a motion to reconsider or reopen the record and being untimely filed, the motion by the Intervenors to reopen the record does not constitute good cause as set forth in 10 C.F.R. 6 2.711 and as amplified by the Appeal Board in the Midland case, supra.
In addition, good cause to extend the time to file exceptions must come from the interests asserted by the ifitervenors, e.3., the findings of fact and/or the conclusions of law set forth in the PIDSA or from the status of tne intervenors themselves.
The Commission's regulations make, this clear.
y For elaboration, see the Staff filing dated May 5,1980 responding to the Springer petition.
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10 C.F.R. 5 2.762(a) provides, in summary, that exceptions may be taken "to that decision or designated portions thereof" and that each exception shall state the error of fact or law asserted identifying the portion of the decision to which the exception is taken.
Further, the supporting brief, to be filed later, must identify the portion of the record relied upon.
See also Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 2),
ALAB-274, 1 NRC 497, 498 (1975).
Thus, David Springer's late petition to intervene, based upon Appalachian v. Train 545 F.2d 1351 (4th Cir.1976) and the North Carolina position on condenser cooling entered in the record on Janua ry 29,1979, (Tr. 2956 and 57) cannot be relied upon or used by the Intervenors even though, fortuitously, some of Mr. Springer's argt.ments may parallel matters previously litigated.
The Int.ervenors must find good cause somewhere in their own case or the record, not in a filing currently outside the record by a stranger to the proceeding.
And, lastly, the Staff notes purely as a matter of equity and laches that there has been more than ample time for the Intervenors to have read the PIDSA issued on February 22, 1980, and to have come to a conclusion as to those matters which taey assert,are factual or legal errors in that decision.
CONCLUSION In view of the regulations and the Commission's case law which emphasizes so strongly that there is a heavy burden to be sustained to reopen a record
r 6-(Wolf Creek, supra), it is the Staff's view that the motion to extend time to file exceptions is without adequate legal or equitable basis and should be denied.
Respectfully submitted,
$Y Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland this 19th day of June,1980.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos. STN 50-488 DUKE F0WER COMPANY STN 50-489 STM 50-490 (PerkinsNuclearStation, Units 1, 2 and 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF OPPOSITION TO INTERVENORS' MOTION TO EXTEND TIME FOR FILING EXCEPTIONS" in the above-captioned proceeding 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 Regu-latory Commission's internal mail system, this 19th day of June,1980 Alan S. Rosenthal, Esq., Chaiman*
Dr. Donald P. deSylva Atomic Safety and Licensing Associate Professor of Marine Appeal Board Science U.S. Nuclear Regulatory Commission Rosenstiel School of Marine Washington, D.C.
20555 and Atmospheric Science University of Miami Richard S. Salzman, Esq.*
Miami, Florida 33149 Atomic Safety and Licensing Appeal Board Dr. Walter H. Jordan U.S. Nuclear Regulatory _ Commission 881 W. Outer Drive Washington, D.C.
20555 Oak Ridge, Tennessee 37830 Dr. John H. Buck
- J. Michael McGarry, III, Esq.
Atomic Safety and Licensing Debevoise and Liberman Appeal Board 1200 Seventeenth Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, D.C.
20555 Elizabeth S. Bowers, Esq., Chaiman*
William A. Raney, Jr., Esq.
Atomic Safety and Licensing Special Deputy Attorney General Board Panel P. O.
Box 629 U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27602 Washington, D.C.
20555
. William L. Porter, Esq.
Atomic Safety and Licensing Associate General Counsel Board Panel
- Duke Power Company U.S. Nuclear Regulatory Commission 422 South Church Street Washington, D.C.
20555 Charlotte, North Carolina 28242 Atomic Safety and Licensing Mrs. Mary Davis Appeal Board
- Route 4 Box 261 U.S. Nuclear Regulatory Commission Mocksville, North Carolina 27028 Washington, D.C.
20555 William G. Pfefferkorn, Esq.
Docketing and Service Section*
P. O.
Box 43 Office of the Secretary Winston-Salem, North Carolina 27102 U.S. Nuclene Regulatory Commission Washington, D.C.
20555 Quinten Lawson, Esq.
Federal Energy Regulatory Commission Room F611 885 North Capitol, N.E.
Washington, D.C.
20426 b(V k ce</--
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Charles A. Ba/th Counsel for NRC Staff w
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