ML20033C986
| ML20033C986 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/30/1981 |
| From: | Wetterhaan M, Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112040565 | |
| Download: ML20033C986 (8) | |
Text
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UNITED STATES OF AMERICA 0
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NUCLEAR REGULATORY COMMISSION
'81
[EC -2 PI :25 Before the Atomic Safety and Licensing Board gAn I 'F SECRETARY
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'i In the Matter of i vacs
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Philadelphia Electric Company )
Docket Nos.
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(Limerick Generating Station, )
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Units 1 and 2)
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gh ><;';a APPLICANT'S ANSWER TO AMENDMENT o
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s TO CEPA'S PETITION TO INTERVENE C>
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Background
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On November 17, 1981, Consumers Education and Protec-tive Association (" CEPA" ) served an amendment to its peti-tion to intervene and the affidavit of its Executive Director, stating that CEPA authorizes the instant intervention.
As discussed below, Applicant, Philadelphia Electric Company, opposes the amendment as inexcusably late.
['
On September 17, 1981, CEPA served a petition for intervention in this proceeding.
An answer was served by the Applicant on October 6, 1981, opposing the proposed intervention, inter alia, on the ground that CEPA had failed to demonstrate standing to represent its members.
In its Memorandum and Order dated October 14, 1981, the l
Atomic Safety and Licensing Board
(" Licensing Board" or j
" Board") directed CEPA "to file an affidavit by a person 7)S63 with authority to so state giving the authorization of the organization to intervene in this proceeding and the authori-zation of the representative filing the petition to act on i
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behalf of the organization. -~' CEPA.was also directed to file affidavits of individual members setting forth their f
interest in the proceeding and authorizing CEPA to act on l
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t their behalf.
In response to the Board's Order, CEPA ~
filed the affidavits of four members which were responsive to the second, but not the first portion of the Board's directive to CEPA.
The affidavits were served on October i
28, 1981, two days late.
In its answer to the various supplemental petitions and information filed by intervenors, i
served on November 9, 1981, Applicant noted that CEPA had l
failed to submit an affidavit authorizing a petition seeking I
intervention in this proceeding and further authorizing a particular representative to act on its behalf, and continued to oppose the petition for intervention on this basis and the other grounds previously asserted.
Without prior authorization from_the Board, CEPA then filed on November 17, 1981 yet another affidavit in a belated attempt to cure the deficiency noted by the Board.
CEPA, however, has failed to comply with the October 14th l
Order of the Licensing Board, and its untimely submission should not be accepted as a basis for intervention.
1/
Memorandum and Order Setting Schedule for Submission of Contentions and Other Preliminary Information
(" Memorandum and Order") at 7 (October 14, 1981).
2/
Id.
Argument In its Memorandum and Order of October 14, 1981, the Licensing Board made it abundantly clear that all parties would be expected to carefully abide its deadlines.
As to the particular information required of CEPA and similarly situated petitioners, the Board emphasized that the requested information should be provided "as soon as possible, and no later than October 26, 1981," adding that "the Board would draw a negative inference, which could be determinative, 3/
from a failure to respond on time. "--
Under the circumstances, the message could not have been made more explicit that im-permissibly late filings would not be accepted.
It is noteworthy that even the initial filing of affi-davits by CEPA was late, and no explanation was given for its tardiness.
The subsequent submission was three weeks late and likewise contained no explanation for lateness.
In view of the strict filing schedule established by the Licensing Board, the inexcusable lateness by CEPA could scarcely be more presumptuous.
The Appeal Board has made it clear that a party may not unilaterally alter the Licensing Board's filing deadline.
Public Service Company of Indiana, 1
Inc. (Marble Hill Nuclear Generating Station, Units 1 and
+
2), ALAB-459, 7 NRC 179, 188-89 (1978).
Preoccupation with other matters and other similar explanations of personal
_3/
Memorandum and Order at 5 (first emphasis in original).
i l
L n
_4-difficulty have been routinely rejected as a basis for i
failure to comply with filing deadlines.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-568, 10 NRC 554 (1979).
And, as the Three Mile Island Board stated, no party has a right to expect that a Licensing Board will ratify a late filing that is submitted as a fait acccmpli without prior permission.
To allow such "would in effect transfer control cf the matter from the e
board to [the party's] representatives who must know well thac the board cannot countenance such unstructured approach 4/
to litigation."'--
i It is also significant that CEPA is represented by counsel in this endeavor, who is presumed to be familiar with the Commission's Rules of Practice and who certainly i
was aware of the importance of timely compliance with the 4
j Board's Order.
Parties to licensing proceedings are under a i
i
" definite requirement
[to] perform their procedural t
l duties in accordance with the Commission's Rules of Practice (10 CFR Part 2), and do so in a diligent, timely fashion,"
including " answering or responding.
. within the time periods established by the Rules or the presiding Board."
Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2'NRC 813, 815 (1975).
1
_4/
Metropolitan Edison Ccmpany (Three Mile Island Nuclear Station, Unit No. 1), Docket No. 50-289 (Restart),
" Memorandum and Order Ruling on Intervenors' Requests for Extensions of Time to File Revised Emergency Plan-ning Contentions" (January 8, 1980) (slip opinion at 2-3).
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While certain lapses by lay representatives have sometimes been excused or overlooked, the Boards and parties are entitled to expect full compliance by parties represented by counsel.
Conclusion, For the reasons discussed above, the public interest in
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the timely and orderly disposition of NRC proceedings -
requires that the late filing by CEPA be disallowed.
Its petition for leave to intervene should therefore be denied for failure to comply with the Board's Order of October 14, 1981 or, alternatively, for the other reasons previously stated by Applicant in opposing the petition.
Respectfully submitted, CONNER & WETTERHAmi i
[i ts Mark J. Wetterhahn Robert M. Rader Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 November 30, 1981
_5/
See Consolidated Edison Company of New York, Inc.
(Indian Point Station, Units 1, 2 and 3), CLI-77-2, 5 NRC 13, 15 (1977).
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION In the Matter of
)
)
PHILADELPHIA ELECTRIC CCMPANY
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
trxTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to Amendment to CEPA's Petition to Intervene," dated November 30, 1981, in the captioned matter, have been served upon the following by deposit in the United States mail this 30th day of November, 1981:
Judge Lawrence Brenner Atomic Safety and Licensing Atemic Safety and Licensing Appeal Panel Scard U.S. Nuclear Regulatory U.S.
Nuclear Regulat0ry Ccmmission Ccemission Washington, D.C.
20555 Washington, D.C.
20555 Dccketing and Service Secticn Judge Richard F. Cole Office of the Secretary Atcmic Safety and Licensing U.S.
Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Cccmission Washington, D.C.
20555 Stephen H.
Lewis, Esq.
Counsel for NRC Staff Judge Peter A. Morris Office of the Executive Atomic Safety and Licensing Legal Director Scard U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Cccmission Ccemission Washington, D.C.
20555 I
Washington, D.C.
20555 Philadelphia Electric Ccmpany Atomic Safety and Licensing ATTN:
Edward G.
Bauer, Jr.
Board Panel Vice President &
U.S. Nuclear Regulatory General Counsel Ccmmission 2301 Market Street Washington, D.C.
20555 Philadelphia, Pennsylvania 19101
i t
i Mr. Frank R.
Romano Robert W. Adler, Esq.
61 Forest Avenue Assistant Counsel i
Ambler, PA 19002 Commonwealth of Pennsylvania,.
DER Mr.-Charles B.
Taylor 505 Executive House 24 West Tenth Avenue P.O. Box 2357 Collegeville, PA 19426 Harrisburg, PA 17120 Mr. Robert L. Anthony Thomas Gerusky, Director 103 Vernon Lane, Box 186 Bureau of Radiation Protection Moylan, PA 19055 Department of Environmental Resources Mr. Marvin I. Lewis 5th Floor, Fulton Bank Building 6504 Bradford Terrace Third and. Locust Streets Philadelphia, PA 19149 Harrisburg, PA 17120 Samuel & Clarissa B.
Cooper Randall Brubaker, Esq.
P.O. Box 16 Assistant Counsel-Colora, Maryland 21917 Commonwealth of Pennsylvania, DER Judith A.
Dersey, Esq.
Room 1200, 1315 Walnut Street -
1 1315 Walnut Street Philadelphia, PA 19107 Suite 1632 Philadelphia, PA 19107 Director Pennsylvania Emergency Charles W.
Elliott, Esq.
Management Agency i
123 N.
5th Street Basement, Transportation and Suite 101 Safety Bldg.
i Allentown, PA 18102 Harrisburg, PA 17120 Mr. William Lochstet John Shniper, Esq.
119 E. Aaron Drive' Hy Mayerson, P.C.
State College, PA 16804 Meeting House Law Bldg. and Gallery Mr. Alan J. Nogee Mennonite Church Rd.
3700 Chestnut Street Schuykill Rd.
Philadelphia, PA 19104 Spring City, PA 19475 1
Mr. Steven Levin Robert J.
Sugarman, Esq.
l 11 Beard Circle Berle, Butzel, Kass, Case Phoenixville, PA 19460 and Sugarman 2115 Bainbridge Street Donald S.
Bronstein, Esq.
Philadelphia, PA 19146 1425 Walnut Street
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Philadelphia, PA 19102 1
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. Mr. Joseph H. White, III 11 South Merion Avenue Bryn Mawr, PA 19010 Dr. Judith H. Johnsrud Co-Director, ECNP 433 Orlando Avenue State College, PA 16801 Walter W.
Cohen, Esq.
Consumer Aduccate Office of Attorney General 1425 Strawberry Square Harrisburg, PA 17120 Steven P. Hershey, Esq.
Community Legal Services, Inc.
Sylvania House Juniper & Locust Streets' Philadelphia, PA 19107 I
v' e
R'obert M.'Rader Counsel for the Applicant l
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