ML20038A901
| ML20038A901 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 11/19/1981 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | COMMONWEALTH EDISON CO. |
| References | |
| ALAB-659, ISSUANCES-OL, NUDOCS 8111240416 | |
| Download: ML20038A901 (5) | |
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UCMc' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g 20 A9 59
.g3 ATOMIC SAFETY AND LICENSING APPEAL PANEL
, c hofsk VI f
Alan S.
Rosenthal, Chairman 3FASCB
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In the Matter of
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COMMONWEALTH EDISON COMPANY
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Docket Nos. 50-454 OL
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50-455 OL (Byron Nuclear Power Station, Units )
1 e d 2)
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Messrs. Michael I Miller, Paul M. Murphy and Alan P.
Bielawski, Chicago, Illinois, for t;ae applicant, Commonwealth Edison Company.
Messrs. Myron M. Cherry and Peter Flynn, Chicago, Illinois, for the intervenor, Rockford League of Women Voters.
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MEMORANDUM AND ORDER 4
November 19, 1981 NOV2 31985. 9 (ALAB-659)
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the Licensing Board entered'an jordy\\[n'
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on October 27, 1981, in which it ilismissed the Rockford League of Women Voters (League) as a party to this operating license proceeding for failure to comply with a Board discovery order.
LBP-81-52, 14 NRC On November 6, 1981, the League filed below a thirty page petition for reconsideration of that order.
Simul-tanenusly, it moved for an extension of the time within which to file exceptions to the order under 10 CFR 2.762 (a).
Alter-natively, the League asked that, if required to file its ex-ceptions at this juncture, the time for the filing of its brief 8111240416 811119..
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- be enlarged.
The basis of the motion was, of course, the pend-ency. of the petition for" reconsideration before the Licensing Board.
On November 10, acting under the authority of 10 CFR 2.787(b), I entered an unpublished order tolling the running of the period prescribed by 10 CFR 2.762 (a) for the filing of ex-ceptions.
The order provided that that period would. commence to run "on the date of service upon the League of the Licensing
-Board's order on the petition for reconsideration * * *".
The applicant now moves for reconsideration of the Novem-ber 10 order.
It asks that we order that the exceptions which the League had provisionally submitted in connection with its motion be briefed now on an expedited basis.
We are told that this will enable our prompt adjudication of the appeal when and if the Licensing Board denies the League's petition for recon-sideration.,.. Although the applicant professes confidence that the appeal would be decided in its favor, it is con;arned that, were we to order the League reinstated as a party after a pro-longed appellate process, the proceedings below might not be concluded prior to the time the Byron facility will be ready for operation.
i For the following reasons, the applicant's motion must be denied.
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1.
Leaving aside any possible attendant jurisdictional problems,2b./ the applicant's suggestion that the briefing of the appeal proceed concurrently with the Licensing Board's appraisal of the pending petition for reconsideration does not commend itself.
True, as-the applicant stresses, were that petition to be granted by the Board below the only consequence would be that "the parties will have been inconvenienced by having to prepare briefs which, in retrospect, would not have -
been necessary".
But the applicant seemingly has failed to take into account that, even if adhering to the result reached in its October 27 order, the Licensing Board might elect to elaborate upon or refine in some significant respect the basis assigned in the order for that result.
Given the thrust of the petition for reconsideration, that possibility cannot be dismissed as insubstantial.
And, were it to materialize, the League most likely would wish, and justifiably so, to recast the 44 provi~ ionally-filed exceptions to meet the Board's re-s joinder to its petition.
In such circumstances, under the applicant's proposal, there would be both an unnecessary round-of briefs and little, if any, time saved.
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The applicant implicitly assumes that the filing of ex-ceptions to a licensing board decision under 10 CFR
- 2. 762 (a) does not strip the Licensing Board of jurisdic-tion to entertain a petition for reconsideration of that decision.
Although it-is unnecessary to reach that ques-tion here, that assumption is not free from all doubt.
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, It was essentially this factor that induced the tolling of the appeal period to await the outcome of the petition for re-consideration.
And that action. was entirely consistent with accepted appellate practice.
It simply is not customary for an appeal to proceed through at least the briefing process while the trial tribunal has before it an authorized and timely-filed petition for reconsideration of the decision or order in ques-tion. 2 /
f;2.,, The applicant has provided insufficient cause to'de-
.part Brom the accepted practice in this instance.
It may well be/ as it insists, that the deferral of the League's appeal will
- nccasion a delay in the ultimate disposition of the licensing l~
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proceedinc
- if (1) the Licensing Board denies reconsidera-
.tiond but t.) we should thereafter overturn the October 27 order f
and reinsta'e the League as a party.
That is, however, a normal t
litigation, risk which the applicant fairly can be deemed to have assumed when it prevailed upon the Licensing Board to dismiss thy'L'dague krom the proceeding.
More specifically, the appli-cant could not have failed to appreciate that, given the gravity s
df'that dismissal, the League would likely resort to all renr edies,available to it under the Rules of Practice -
,.f.e.,
first
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Tita,the pet!ition was authorized is beyond dispute.
10 CFR 2.771;, Consumers Power Co. (Midland Plant, Units 1 and 2),
ALA5 43E 8 AEC 645, cT6-(1974).
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3 a petition for reconsideration addressed to the Licensing Board and then, if necessary, an appeal to us. 3 /
Likewice, the con-sequences of a possible eventual appellate reversal were reason-ably to be anticipated.
In short, there is n > thing either obvi-ous or suggested by the applicant to differentiate its current situation from that of any other litigant whose initial victory is subject to various, and consecutive, further reviews.
The applicant's motion for reconsideration of the Novem-ber 10, 1981 order is denied. 4I It is so ORDERED.
FOR THE APPEAL PANEL CHAIRMAN b.bd Ad C. Je() Shodmaker Secrethry to the Appeal Panel This action,was taken by the Appeal Panel Chairman under the authority of 10 CFR 2.7 87(b).
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In this connection, in Midland, ALAB-235, fn. 2 supra, wo granted essentially the same relief which was provided in the November 10 order.
Significantly, that relief was sought by the lawyer who represents the League here and was opposed by the same
.'.aw firm (indeed the very same counsel) representing this applicant.
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Should the Licensing Board deny the League's petition for reconsideration, the applicant will be free, of course, to move for excedited briefing and consideration of any excep-tions thereafter filed by the League,