ML20003G024
| ML20003G024 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/24/1981 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8104280079 | |
| Download: ML20003G024 (8) | |
Text
9 04/24/81
. UNITED STATES OF A*4 ERICA NUCLEAR REGULATORY COMetISSI0tt BEFORE THE ATO:11L SAFETY AND LICENSING APPEAL BOARD In the flatter of
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HOUSTON LIGdTING & POWER COMPANY
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50-499
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(South Texas Project, Units 1 & 2) )
s NRC STAFF'S 0PPOSITION TO CCANP'S CROSS APPEAL AND AGREEMENT WITH SHORTENING THE BRIEFING TIME INTRODUCTION On April 13, 1981, the Intervenor Citizens Concerned About Nuclear Power (CCANP) served a pleading entitled " Opposition to NRC's ' Notice of Appeal and List of Exceptions' and Cross Appeal - itarch 24,1981."1/ In this pleading CCANP attempts to file a " cross appeal" on the following issues (p. 2):
1.
Tne ASLB erred by denying discovery of the names of persons interviewed on relevant matters by the NRC's Office of Inspector and Auditor (p. 7, note 2).
2.
The ASLB erred by denying discovery of the names of all persons who supplied information to the NRC on all relevant catters forming the basis of the Order to Show Cause dated April 30, 1980, rather than limiting such discovery to QA/QC inspectors and employees furnishing information on harassment of QA/QC inspectors (pp. 7, 9).
1/
A statement of this proceeding appears in the NRC " Motion for Direct Certification Pursuant to 10 C.F.R.12.785(d)," April 3,1981, in which Intervenor's pleading was in partial reply.
The Rules of the Commission do not provide for a responsive pleading to a notice of appeal.
S/0 Y296079
. At p. 8 of that pleading CCANP also suggested that an expedited briefing schedule be set.
DISCUSSION A.
The NRC Staff opposes Concerned Citizens About Nuclear Power's (CCANP) " cross appeal" because:
i, 1)
It is untimely.
2)
Part of the material upon which CCANP seekt to predicate an
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appeal from a denial of discovery, was never requested below. Thus, there was no appealtble order in regard to such information.
- 3) To the extent CCANP_ seeks to appeal a denial of discovery, it seeks to appeal an interlocutory order not subject to appeal.
1.
10 C.F.R. 9 2.762(a) provides that a notice of appeal be filed witnin 10 days of a decision.
No provision is made and no separate time-is provided for a " cross appeal." CCANP's " cross appeal" was not filed until April 13, 1981, some 20 days after the Board's March 24, 1981, "tiemorandum and Order." Such filing was beyond the time provided in the Commission's Rules of Practice for filing a notice of appeal.2f 2_/
CCANP did not even seek discovery of the matters as to which it now seeks to file this " cross appeal" until long after its time to seek discovery of those matters expired. The time to file discovery against the NRC Staff expired on February 2, 1981.
"Second Prehearing Conference Order," December 2,1980, p. 5.
The request for the names of persons interviewed by the Office of Inspector and Auditor was first made by CCANP orally during the Third Prehearing Conference on March 18, 1981, some 44 days after the time to nake such a request expired. The request for other names was apparently first made in the purported notice of " cross appeal" of April 13, 1981, some 70 days after the time to make such requests expired.
Thus not only is the CCANP appeal untimely, but the requests for discovery on which this appeal is based were made out of time.
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. r Pro se_ intervenors, as all others appearing before the boards of this Coaiaission, have an obligation to abide by the time limits in these Rules of Practice.
See iletropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 746, 743-749 (1978); cf.
Pennsylvania Power & Light Co.1 (Susquehcnna Steaa Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317, 339-340 (1980)'; Detroit Edison Co.
(Enrico Fermi Atomic Plant, Unit 2), ALAB-4698, 7 NRC 470 (1978).
i Therefore, this late filed appeal must be dismissed as untimely. See Snsolidated Edison Co. of New York (Indian Point Station, Unit No. 3),
ALAB-281, 2 NRC 6 (1976); Duquesne Light Co.
(Beaver Valley Power Station, Unit 1), ALAB-310, 3 NRC 33 (1976).
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2.
CCANP cannot appeal a denial of discovery of material it did not seek below.
The second issue on which CCANP seeks to appeal is a denial of discovery of the names of all other persons" who supplied inforaation -
to the NRC on all relevant natters forming the basis of the Order to Shovi f Cause dated April 30, 1980, rather than limiting such discovery to QA/QC inspectors and employees furnishing information on harassment of QA/QC inspectors." No showing was made that this information was ever sought in discovery below. One may only appeal natters raised below. Where such a natter was not raised below, no appeal lies.
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2),
ALAB-486, 8 NRC 9, 28 n. 36 (1980); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, 28), ALAB-463, 7 NRC 341, 351-352(1978).
3.
Tne appeal seeks to raise issues involving a purported denial of discovery.
Such a denial is an interlocutory order and may not
. be appealed. Public Service Co. of Oklahoma (Black Fox Station, Units 1
& 2), ALAS-370, 5 f4RC 131 (1977); Corr.onwealth Edison Co. (Zion Stati3n, Units 1 & 2), ALAB-116, 6 AEC 258 (1973). Any error in denying discovery can be corrected upon a final determination if the ruling was prejudicial. See Illinois Power Co. (Clinton fluclear Power Station,
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Units 1 & 2), ALAB-340, 4 fiRC 27 (1976); fiorthern Indiana Public Service V
Co. (Bailly Generating Station, fluclear-1), ALAB-303, 2 f1RC 858, 859 (1975).E B.
Lie f4RC Staff is in agreement with the suggestions of the Intervenor CCA!1P at p. 8 of their " Opposition to f4RC 'flotice of Appeal dnd list of Exceptions' and Cross Appeal - March 24, 1981," that an expedited briefing schedule be set. The Applicant at pp. 9-10 of its April 15,1981 " Applicant's Response to the fiRC Staff's 'flotice of Appeal and List of Exceptions' and ' Motion for Directed Certification Pursuant to 10 C.F.R. s 2.785(d)'" also suggested an expedited briefing schedule.
Hearing is now set to commence on May 12, 1981.
The Staff suggests that the Staff be given 7 days to brief its appeal from an order of this 4
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A different situation is presented on appeal of an order granting discovery where the harm to be caused by such an order could not be corrected upon appeal after final determination of the proceeding.
See Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973); see also Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 t4RC 752,758 (1975).
s Board, and that the other parties have 7-days 'from the service of Staff's brief to respond. E CONCLUSION For the above stated reasons, the NRC Stiff asks that the " cross
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- appeal" be dismissed and the times to brief the Staff's appeal be shortened.
Respectfully subnitted, ic Edwin J. Reis Counsel for NRC Staff Dated at Bethesda, :iaryland this 24th day of April, 1981.
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_4f The Staff will serve its brief by Express-Mail.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEfst BOARD In the Matter of
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HOUSTON LIGHTING A'iD POWER C0'4PANY, Docket Nos. 50-498 ET AL.
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50-499
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(South Texas Project, Units i f, 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S OPPOSITION TO CCANP'S CROSS APPEAL AND AGREEt1ENT WITH SHORTENING THE BRIEFING TIME" 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 Regulatory Commission's internal mail system, this 24th day of April, 1981:
Richard S. Salzman, Chairman
- Mr. Ernest E. Hill Atomic Safety and Licensing Lawrence Livermore Laboratory Appeal Board University of California U.S. Nuclear Regulatory Conmission P.O. Box 808, L-123 Washington, DC 20555 Livernore, CA 94550 Dr. John H. Buck, Menber*
Melhert Schwarz, Jr., Esq.
Atomic Safety and Licensing Baker and Botts Appeal Board One Shell Plaza U.S. Nuclear Regulatory Commission Houston, TX 77002 Washington, DC 20555 Christine N. Kohl, Esq.*
Mrs. Peggy Buchorn Atomic Safety and '.icensing Executive Director Appeal Board Citizens for Equitable Utilities, U.S. Nuclear Regulatory Commission Inc.
Washington, DC 20555 Route 1, Box 1684 Brazoria, TX 77422 Charles Bechhoefer, Esq., Chairman Atomic Safety and Licensing Brian Beniick, Esq.
Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission Environmental Protection Division Washington, DC 20555 P.O. Box 12548, Capitol Station Austin, TX 78711 Dr. James C. Lamb III 313 Woodhaven Road Chapel Hill, NC 27514
. s Jack R. Nesnan, Esq.
Docketing and Service Section Lowenstein, Newnan, Reis, Office of the Secretary i
Axelrad & Toll U.S. Nuclear Regulatory Conmission 1025 Connecticut Avenue, N.W.
Washington, DC 20555 Washington, DC 20036 Kin Eastman, Co-coordinator Atomic Safety and Licensing Barbara A. Miller Board Panel
- Pat Coy U.S. Nuclear Regulatory Commission Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atomic Safety and Licensing
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San Antonio, TX 78233 Appeal Board
- U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Lanny Sinkin Citizens Concerned About Nuclear Power 2207 D. Nueces Austin, TX 78705 Edwin J.
is Counsel r NRC Staff D
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