ML19331A854
| ML19331A854 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/17/1974 |
| From: | Skrutski R NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-235, ISSUANCES-CP, NUDOCS 8007230888 | |
| Download: ML19331A854 (9) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION
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ATOMIC SAFETY AND LICENSING APPEAL BOARD 9
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Richard S. Salzman, Chairman
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3 Dr. Lawrence R. Quarles, Member Cf; Michael C. Farrar, Mc=ber s
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In the Matter of
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CONSUMERS POWER COMPA'IY
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Construction Pernit -
Nos. 81 and 82
-Q (Midland Plant, Units 1 and 2) )
(Show Cause) v\\
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Mr. Myron Cherry, Chicago, Illinois, for the /
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Messrs. Michael I.
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Rex Renfrow III, and Paul.:. Murphy, Chicago, Illinois, for the Applicant, Consumers Power Company.
Messrs. Laurence M.
Scoville, Jr. and P.
Robert Brown, Jr.,
Detroit, Michigan, for intervenors Bechtel Power Corporation and Bechtel Associates Professional Corporation.
Mr. William J. Olmst'ead for the Atomic Energy Commission Regulatory Staff.
MEMORANDUM AND ORDER (ALAB-235)
October 17, 1974 The Saginaw Intervenors have petitioned the Licensing Board to reopen and reconsider its Initial Decision in this case and concurrently have moved us to extend their time to l
except to the Initial Decision until after the Licensing
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Board acts on their petition.
It is this motion which is now before us.
Saginaw's petition to the Licensing Board rests on
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its discovery of applicrant's suit against the Bechtel Corporation (among others) for $300,000,000 in damages allegedly caused by the faulty design, supervision and construction of applicant's Palisades nuclear facility.
Saginaw asserts that those allegations merit exploration in the instant proceeding (involving quality assurance in the construction of the Midland facility) because ap-plicant also relied on Bechtel to design, construct and supervise a major portion of the work at Midland.
Saginaw urges that its petition to the Licensing Board constitutes good cause for us to enlarge its time to file exceptions until after the Licensing Board rules.
The Bechtel intervenors and the regulatory staff oppose Saginaw's motion as a dilatory tactic seeking impermissible relief. N We do not agree and grant the relief sought.
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The applicant also opposes the motion to enlarge the time to file exceptions.
Its opposition, however,
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was untimely, not having been filed until October 15, 1974, 5 days after the due date for responding to Saginaw's motion, which was filed and served on Sep-tember 30, 1974.
See 10 C.F.R. 92.730 (c), 10 C.F.R. 82.710, and 10 C.F.R. 58.3.
We note that the appli-cant advanced no substantial argument not covered in papers of the other parties opposed to the motion.
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Bechtel argues principally that the Commission's Rules do not sanction motions to reconsider Initial Decisions.
From this premise, it reasons that this Board "has no authority" to extend the time to file exceptions in this case.
Bechtel's opposition rests on a misconception of practice under the Commission's Rules.
As the courts have held, "The power to reconsider is inherent in the power to decide."
Spanish International Broadcastina Company v.
F.C.C.,
385 F.2d 615, 621 (D.C. Cir. 1967).
See also, Section 10 (c) of Administrat-ive Procedure Act, 5 U.S.C. E704 (1970).
The Commission's Rules mirror that understanding and expressly contemplate the filing of petitions for reconsideration.
10 C.F.R.
H2.771 (1974 rev.).
Bechtel reads section 2.771 to limit such pe'titions to requests for reconsideration of " final,"
i.e.,
Commission, decisions.
Like many procedural rules, however, those of the Commission have evolved over many years, during the course of which they have been modified from time to time to meet specific situations.
These changes have perhaps obscured the intendment of section 2.771.
In practice, however, it is established that the rule does not preclude a party from petitioning a licensing board to reconsider its initial decision.
See pp. 5-7, in'fra.
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_ Bechtel's alternate contention is that the Licensing Board, by formally reciting in its Initial Decision (slip opinion, p. 59) that this " proceeding is terminated,"
divested itself of jurisdiction to entertain Saginaw's petition for reconsideration. --2/
This argument elevates form over substance.
The Licencing Board's jurisdiction is established by the Commission's Rules.
10 C.F.R.
- 52. 717 (a) (19 74 rev. ).
Except where it recuses itself in a.particular case, a licensing board's actions can neither enlarge nor contract the jurisdiction conferred by the 3/
Commission.
In this case the Initial Decision was rendered on September 25, 1974.
Saginaw's petition to reopen and reconsider was filed by mail on September 30, 1974.
The Licensing Board therefore has jurisdiction to entertain it.
10 C.F.R. 552.717(a) and 2.771(a).
In any event, this Board has been delegated express authority by the Commission to extend the time for filing exceptions, and our " authority" to do so is not dependent on the actions or the jur,isdiction of the Licensing Board.
10 C.F.R. 552.711(a) and 2.785 (b) (1974 rev. ).
2/ We doubt that the Licensing Board intended any relin-quishment of jurisdiction by the quoted phrase.
Wa think the remark is simply equivalent to the state-ment, often made at the end of judicial proceedings, i
that "the case is closed."
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Cf. American Fire & Casualty Co. v. Finn, 341 U.S.
6, 17-18 (1951).
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Unlike Bechtel, the staff does not challenge the right of either this Board or the Licensing Board to act on the Saginaw motions respectively before them.
- Instead, staff counsel urges that the pendency of a petition ask-ing a licensing board to reconsider-its initial decision is never " good cause" for enlarging the time to except from that decision.
Staff counse', characterizes this ground for an extension of time as a " classic example of circular reasoning," and says that were it'to be accepted,
.... no matter could ever be concluded if a party to a proceeding did not want the record closed.
All that would be necessary would be a continuous flow of motions upon motions.
A party could always justify an extension request on the grounds that another motion was still
. pending and had not been ruled upon.
Since rulings must always be subsequent to some earlier action the record could never be closed.
l We find this argument passing strange because only a f
l few weeks ago counsel representing the regulatory staff successfully argued precisely the opposite in Perry.
In l
that case the staff requested an extension of time to file exceptions while a licensing board pondered a petition, based on new evidence,to reconsider its initial decision.
l Not; withstanding staff counsel's contrary contentions here, l
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. staff counsel in Perry expressly represented to us that these-circumstances were in fact " good cause" for en-larging the time to file exceptions, cogently pointing out that "[ilf the motion (to reconsider] is granted, the actions taken upon reopening of the record may well obviate or alter the exceptions which some parties would otherwise take." --4/
Particularly at this season we bear in mind Emerson's observations about foolish consistency being a hobgoblin.
Even so, we cannot -distinguish intervenors ' request in this case from the staff's in Perry, unless it is that now the shoe is pinching the other foot.
That is hardly grounds for dissimilar treatment of similar motions.
Staff counsel and Bechtel express concern that our grant of one extension of time to file exceptions on the ground that a motion to reconsider is pending below would lead ineluctably to a record.open indefinitely.
That con-cern is unfounded.
Even in federal court practice where ifiling a motion to reconsider within ten days of judgment
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stops the running of the time to appeal automatically, it l
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_4/ Cleveland Electric Illuminating Company (Perry Nuclear l
Power Plant, Units 1 and 2) Docket Nos. 50-440 and 441, "AEC Regulatory Staff's Motion for Extension of Time Within Which to File Exceptions to the Initial Decision,"
filed on September 25, 1974.
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. does not follow that filing a series of such motions 5/
necessarily extends the time to appeal.
We think it even less likely to do so under our own rules, where such an extension is always discretionary.
This is particularly so because, even if granted, a petition to reconsider does not automatically stay the issuance of a construction permit or an operating license.
10 C.F.R. 82.771(c) (1974 rev.).
This is another reason why such petitions are unlikely to be filed ad infinitum.
In short, post-decision attempts by losing parties to reopen the record are not novel in agency practice.
Administrative tribunals are equipped and experienced to deal with requests of this sort on the merits. --6/
Counsel may rest assured that Jarndyce v. Jarndyce is not precedent for practice before us.
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See Rule 59, F.R.
Civ.
P.,
and Rule 4, F.R.
App. P.;
Yates v. Behrend, 280 F.2d 64 (D.C. Cir. 1960); Dockery
- v. Travelers Co.,
349 F.2d 1017 (5th Cir. 1965); Ellis
- v. Richardson, 471 F.2d 720-(5th Cir. 1973); 6A Moore's Federal Practice, 1 59.09[1].
A motion to reconsider is the equivalent of a motion for a new trial.
Calvin
- v. Calvin, 214 F.2d 226 (D.C. Cir. 1954).
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- See, e.o., Northern Indiana Public Service Company (Bailfy^ Generating Station, Nuclear 1), ALAB-227, RAI-74-9, (September 5,1974) (On Motion to Remand, slip op. pp. 3-6).
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III.
We recognize that the Saginaw intervenors did not participate as fully in the proceedings below as they might have done.
Nevertheless, the purpose of that hearing on the show cause order was to investigate a matter related to public safety, not to settle an inter-party dispute.
Saginaw's motion before us asks only that its time to file exceptions be_ extended until the Licensing Board resolves the petition to reconsider.
That petition brought to the Licensing Board's attention for the first time ~the fact that applicant is suing Bechtel on allegations of deficient performance in con-structing another nuclear facility.
The adequacy of Bechtel's performance at the Midland facility was a matter at issue in the proceedings below.
Whether applicant's new allegations about Bechtel's inadequate performance at Palisades should be taken into account in evaluating the evidence of that organization's performance at Midland is a matter which cannot be dismissed out of hand as a dilatory tactic.
In the circumstances, Saginaw's motion to extend i
l the time to except until the Licensing Board rules on its I
petition raising this new development is an appropriate request.
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The' time within which to file exceptions to the Ini-
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tial. Decision is enlarged for all parties until seven days after the Licensing Board acts on Saginaw's pending peti-tion to reopen the record and reconsider its Initial Deci-sion in this case and, if the motion be granted, then until seven days after that Board renders a new decision. --7/
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD f
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Romayne Skrutski Secretary to the Appeal Board
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Our disposition of this matter makes it unnecessary to pass on the Saginaw Intervenors' request for additional time to except because they were not served with a complete copy of the Initial Decision.
We note, however, that the Commission's Rules con-template that " service" may be made by depositing documents in the U.S. Mail.
10 C.F.R. 82.712 (1974 rev.).
Implicit in that rule is that the documents mailed are complete; otherwise, service is not ef-fective and the time to respond does not commence to run.
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