ML20042A866
| ML20042A866 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/22/1982 |
| From: | Cutchin J, Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8203240218 | |
| Download: ML20042A866 (11) | |
Text
UNITED STATES OF APERICA i
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of METROPOLITAN EDIS0N COMPANY, ET AL.
Docket No. 50-289 (Three Mile Island, Unit 1)
NRC STAFF RESPONSE TO UCS MOTIONS REGARDING BRIEFING 0F EXCEPTIONS TO PARTIAL INITIAL DECISION sk
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James M. Cutchin IV l
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Mary E. Wagner Counsel for NRC Staff i
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l UNITED STATES OF Af1 ERICA NUCLEAR REGULATORY C0fHISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of f1ETROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (ThreeMileIsland, Unit 1)
NRC STAFF RESPONSE TO UCS MOTIONS REGARDING BRIEFING OF EXCEPTIONS TO PARTIAL INITIAL DECISION I.
INTRODUCTION AND BACKGROUND Briefs on exceptions to the THI-1 Partial Initial ~ Decision (Plant Design and Procedures, Unit Separation, and Emergency Planning Issues),
were due to be filed by March 10, 1982. Briefs were timely filed by the Licensee, the Commonwealth of Pennsylvania and the Aamodts. UCS failed to file a brief by that date. On March 15,1982 some 5 days after UCS' brief on all of its exceptions was due to be filed, the Staff received a copy of a UCS brief that addressed only about half of the UCS exceptions 1/ and a copy of a UCS motion for an extension of time to
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" Union of Concerned Scientists' Brief on Exceptions to the Partial Initial Decision of December 14, 1981", dated March 12, 1982.
The Staff notes that UCS' late-filed brief is not in compliance with Commission Rules of Practice.
10 CFR 5 2.762(c) provides, inter alia, that any brief to the Appeal Board in excess of 10 pages shall contain a table of contents with page references and a table of cases and other authorities cited, together with page references.
UCS' brief, some 64 pasas in length, contains neither. More important'ly, from the standpoint of the ability of the parties to understand and respond to UCS' brief, the brief fails to support each factual assertion made by "a reference to the precise portion of the record upon which it is based," as required by 10 CFR 9 2.762(b). Rather, UCS, in the vast majority of instances, has referred only to its own proposed findings of fact and states that the brief has been prepared "to be read in conjunction with the UCS proposed findings." UCS March 12 brief, at 1.
brief the remainder of its exceptions.2/ On March 16th, UCS filed another motion in which it asked for (1) leave to file out of time the brief that was hand-delivered to the Appeal Board on March 13th, (2) an extension of time until April 5,1982 to complete the briefing of its exceptions and submit a table of contents and table of cases and, (3) an increase in the 70-page limitation on the briefs in support of its exceptions to 125 pages.3_/
On March 16 the Appeal Board issued a Memorandum and Order inviting the parties to respond to the UCS requests for relief.
This is not the first time that UCS has sought extensions from the Appeal Board in connection with the instant appeal. At the request of UCS, the Appeal Board has already granted two extensions of time within which to file exceptions to the December 14, 1981 Partial Initial Decision in this proceeding.
Exceptions were originally due on Decem-ber 31,1981 but this date was extended by the Appeal Board to February 1, 1982 in response to requests bv UCS and others. Order (unpublished),
December 23, 1981.
By motion dated January 21, 1982, UCS sought a further extension of the February 1 deadline to February 16 or to March 1.
The Appeal Board denied that request on the ground that the one month extension already 2/
" Motion for Extension of Time To Complete Briefing Exceptions,"
dated March 12, 1982.
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" Motion for Extension of Time For Filing Brief on Exceptions and for Waiver of Page Limitation," dated March 16, 1982 (UCS Motion).
This motion apparently was filed by UCS after discussions with the Appeal Board Chairman to whom UCS's March 12, 1982 brief and motion had been hand-delivered on March 13, 1982.
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granted provided the parties ample time to prepare exceptions while addressing other matters before the Commission. The Appeal Board expressed its concern that it proceed to address the issues on 6ppeal as promptly as possible consistent with granting the parties a reasonable opportunity to prepare their cases. Order (unpublished), January 22, 1982. UCS moved for reconsideration of the Appeal Board's denial of the further extension; the Appeal Board in its discretion granted a one-week extension in the due date for filing exceptions, noting that it was satisfied that UCS' ability to litigate its contentions had not been compromised. Order (unpublished),
January 29, 1982.
In view of this background of extensions in this appeal process and for the reasons set forth below, the Staff does not oppose the acceptance for filing of the brief submitted to the Appeal Board on March 13th as soon as the missing tables are provided, but the Staff does oppose the remainder of the UCS motions in all respects.
II. DISCUSSION A.
Permission to File Original Brief Late As to UCS' request for permission to file its original brief on exceptions af ter the due iate IICS' failure to request such an extension in a timely manner demonstrates an apparent lack of regard for the NRC regulatory process in which UCS is participating. While the Staff appreciates that in exceptional circumstances deadline responsibilities cannot always be met, it is obvious that a party seeking relief from a deadline has a responsibility to request such relief in a timely manner. See, M.,
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2),
ALAB-666, (February 12, 1982, at 5, 6) (slip op.).
The Appeal Board's March 16, 1982 Memorandum and Order noted that UCS has offered the explanation that it mistakenly believed that the Comission Rules permitted personal delivery of a brief within five days of the due date.
10CFR62.712(d)makesitclearthatserviceby personal delivery is complete upon actual delivery, while service by mail is complete upon deposit in the United States mail. There is simply no logical reason to infer from Comission Rules that a party willing to personally serve a pleading has the benefit of an additional five days to complete that pleading compared to a party who chooses to use the mails for service.O It is unreasonable for any party to hold such a mistaken belief, much less a party like UCS and its counsel who for many years have been active participants in numerous licensing and other proceedings before the Comission and who have repeatedly demonstrated familiarity with the Rules of Procedure.
In addition, UCS has been the recipient of hand-served pleadings both in this and other Comission proceedings, and has had ample occasion to observe that those pleadings were served on the due date and not simply within five days thereof.
Appendix A to the Comission's Rules of Practice contains the procedures the Comission expects to be followed in the prosecution of appeals. Appendix A reflects the Comission's recognition that
" fairness to all the parties in such cases and the obligation of administrative agencies to conduct their functions with efficiency and
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Similarly, a reading of 10 CFR Q 2.710 can not fairly give rise to any other conclusion than tnat the five day extension referred to therein applies only to computation of the filing date for a reply to a pleading, is only applicable when the pleading is served by mail, and in no way affects the date for hand service of a pleading.
economy, require that Comission adjudications be conducted without unnecessary delays." 10 CFR Part 2, Appendix A, introductory statement.
Consistent with its public responsibility to conduct adjudications expeditiously, the Commission has made it clear that:
There must be strict compliance with the time limits prescribed for the filing of exceptions or briefs by the rules of practice or by an order of the Appeal Board which extends or shortens those limits in the particular case. Absent a showing of extraordinary and unanticipated circumstances, motions for extensions of time must be received by the Appeal Board at least I day prior to the date upon which the document in question is then due for filing.
In no circumstances will a document be accepted by the Appeal Board on an untimely basis unless it is accompanied by a motion for leave to file it out of time, which similarly must be founded upon extraordinary and unanticipated circumstances.
10 CFR Part 2, Appendix A, Section IX(d)(3). The Commission has recently stated its position that requests for extensions of time "should be received by the Board well before the time specified expires."5_/
The Appeal Board has in the past stressed the importance of the requirement that a motion for an extension of time be transmitted so that it is in the hands of the Appeal Board at least one day before the substantive document is due.
Failure to follow that practice in connection with any motion for an extension of time provides a sufficient basis, in and of itself, for denying the motion. See, e.g.,
Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3),
ALAB-117, 6 AEC 261-62 (1973).
UCS has shown no justification for its failure to timely file its original brief. Nevertheless, because the March 13th brief was
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" Statement of Policy on Conduct of Licensing Proceedings", 40 Fed.
Reg. 28533; CLI-81-8, 13 NRC 452, 454-55 (1981).
6-submitted only a few days late and subject to prompt provision by UCS of the missing tables of contents and authorities, the Staff coes not oppose its acceptance for filing upon receipt of those tables. However, the Staff believes that the time for replies to that brief should begin to run from the date the brief is actually accepted for filing.
B.
Extension Until April 5 For Briefing Remaining Issues The Commission's concern that it meet its responsibilities in the licensing area in a timely manner caused it to recently examine at length all major elements in its licensing procedures and resulted in a Comission " Statement of Policy on Conduct of Licensing Proceedings",
published in the Federal Register on May 27, 1981.
In that Statement, the Commission encouraged the adjudicatory boards to expedite the hearing process by using the procedural devices of Part 2 of the Comission's Rules of Practice. Mindful of the fact that certain participants in the p.ocess may face special circumstances, the Commission cautioned that:
Fai ness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Comnission regulations. While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.
46 Fed. Reg. 28533; CLI-81-8, 13 NRC 452, 454 (1981). The Commission's statement is equally applicable to the appeal stage of the licensing process.
As noted.above, UCS has already succeeded in obtainin: an additiona?
five weeks for filing its exceptions.
In contrast to the instant situation, those requests were filed before the expiration of the due date of the substantive pleading.
UCS offers no justification, or any reason at all, as to why the now sought extension for briefing was not timely made. As stated above, failure to assure that a motion for an extension of time is jn_ the hands of the Appeal Board at least one day before the substantive document is due is sufficient reason, in and of itself, to deny the request. Waterford, ALAB-117, supra. Any motion which is not transmitted in a timely fashion must contain, in addition to the reasons relied upon to justify the extension, a showing of good cause for failure to submit the motion in a timely fashion. H.at262.
6 UCS has shown neither an extraordinary nor an unanticipated _/
circumstance that would justify, first, its failure to request an extension of time prior to the filing date, or second, leave to file its remaining brief out of time. Requesting an extension of time only after the deadline set by the Appeal Board for the filing of briefs had clearly passed -- by a party with as much familiarity with NRC proceed-ings as UCS -- can be interpreted as nothing other than a knowing disregard for Comission Rules.E UCS' request for an additional 26 6/
Counsel's absence from the office for maternity leave cannot be fairly characterized as either extraordinary or unanticipated.
Staff submits that any counsel anticipating an absence from the l
office for a lengthy period of time should be expected to make arrangements so that a client's ongoing litigation needs will be timely met. Moreover, as to the UCS claim that it has only one attorney, the Staff notes that documents recently submitted by UCS have been signed by other members of Ms. Weiss' law firm, namely Mr. Bishop and Mr. Jordan. See, e.g., " Union of Concerned Scientists Request for Extension of TTme to File Exceptions To The Partial Initial Decision of December 14, 1981" dated December 18, 1981 and " Union of Concerned Scientists' Reply Comments on l
Relationship Between Reopened Proceeding on Cheating and Immediate Effectiveness" dated January 20, 1982. Counsel offers no explan-ation as to why these other attorneys, who in her absence have prepared and filed other pleadings in this proceeding on behalf of UCS, could not have assisted in this particular matter.
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It is the Staff's view that the condoning of such blatant disregard by experienced counsel for the Comission's procedural requirements invites others to ignore them and damages the integrity of the Commission's adjudicatory processes.
, days beyond the established briefing deadline is not reasonable, is not adequately supported, and would result in a significant delay in the completion of the appeal process. That request should be denied.
C.
Expansion of Page Limitation UCS' motion at this time for an expansion of the Comission's page limitations shows similar disregard for established procedures.
For good cause shown, a party may request an enlargement of this page limitation, but such request "shall be made by motion submitted at least seven [7] days before the date upon which the brief is due for filing and shall specify the enlargement required." 10 CFR % 2.762(e). Thus, UCS' motion should have been submitted by March 3, some seven days before UCS' brief was due to be filed. UCS should not be granted any page enlargement at this late date.
III. CONCLUSION For the foregoing reasons, and subject to the conditions stated, the Staff does not oppose the acceptance for filing of the brief submitted to the Appeal Board on March 13th, but the Staff does oppose the remainder of the UCS motions in all respects.
Respectfully submitted, h
w c~.
James M. Cutchin, IV Counsel for NRC Staff hf Y'f Mary,L. Wagn#r Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of March, 1982.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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METROPOLITAN EDISON COMPANY, ET AL.
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Docket No. 50-289
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(Restart)
(Three Mile Island, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO UCS MOTIONS REGARDING BRIEFING 0F EXCEPTIONS TO PARTIAL INITIAL DECISION", 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, by deposit in the Nuclear Regulatory Comission's internal mail systen, or, as indicated by double asterisks, by hand-delivery, this 22nd day of March, 1982:
Dr. Linda W. Little
- Gary J. Edles, Chairman Administrative Judge L.W. Little Associate Atomic Safety & Licensing Appeal Board Panel 1312 Annapolis Dr., Suite 214 U.S. Nuclear Regulatory Comission Raleigh, N.C.
27608 Washington, D. C.
20555 George F. Trowbridge, Esq.
- Christine N. Kohl Shaw, Pittman, Potts and Atomic Safety & Licensing Appeal Trowbridge Board Panel 1800 M Street, N.W.
U.S. Nuclear Regulatory Comission Washington, D. C.
20036 Washington, D.C.
20555 Robert Adler, Esq.
- Dr. John H. Buck 505 Executive House Atomic Safety & Licensing Appeal P. O. Box 2357 Board Panel Harrisburg, Pennsylvania 17120 U.S. Nuclear Regulatory Comission Washington, D. C.
20555 Honorable Mark Cohen 512 D-3 Main Capital Bldg.
- Ivan W. Smith Harrisburg, Pennsylvania 17120 Administrative Judge Atomic Safety & Licensing Board Panel Ms. Marjorie Aamodt U.S. Nuclear Regulatory Comission R.D. #5 Washington, D. C.
20555 Coatesville, Pennsylvania 19320 Dr. Walter H. Jordan Mr. Thomas Gerusky Administrative Judge Bureau of Radiation Protection 881 W. Outer Drive Dept. of Environmental Resources Oak Ridge Tennessee 37830 P. O. Box 2063 Harrisburg, Pennsylvania 17120 Gary L. Milho111n, Esq.
1815 Jefferson Street Madison, Wisconsin 53711
_ _ _ _ Mr. Harvin I. Lewis 6504 Bradford Terrace
- Atomic Safety and Licensing Appeal Board Philadelphia, PA 19149 U.S. Nuclear Regulatory Commission "9
Mr. C. W. Smyth, Supervisor Licensing THI-1
- Atomic Safety and Licensing Board Panel Three Mile Island Nuclear Station U.S. Nuclear Regulatory Commission MidIe "9
n ennsylvania 17057 Ms. Jane Lee
- Secretary R.D. 3; Box 3521 U.S. Nuclear Regulatory Comission Etters, PA 17319 ATTN: Chief. Docketing & Service Br.
Walter W. Cohen, Consumer Advocate Department of Justice William S. Jordan, III Esq.
Strawberry Square,14th Floor Harmon & Weiss Harrisburg, PA 17127 1725 I Street, N.W.
Suite 506 Thomas J. Germine Washingt'on, DC 20006 Deputy Attorney General Division of Law - Room 316 John Levin, Esq.
1100 Raymond Boulevard Pennsylvania Public Utilities Comm.
Hewark, New Jersey 07102 Box 3265 Harrisburg, PA 17120 Allen R. Carter, Chairman Joint Led slative Committee on Energy Jordan D. Cunningham, Esq.
Post Office Box 142 Fox, Farr and Cunningham Suite 513 2320 North 2na Street Senate Gressette Building Harrisburg, PA 17110 Colunbia, South Carolina 29202 Louise B-adford Robert y. Pollard Three Mile Island Alert 609 Hontpelier Street 1011 Green Street Baltimore, Maryland 21218 Harrisburg, PA 17102 Chauncey Kepford Ms. Ellyn R. Weiss Judith Johnsrud Harmon & Weiss Environmental Coalition on Huclear Power 1725 I Street, N.W.
433 Orlando Avenue Suite 506 State College, PA 16801 Washington, DC 20006 i
l Hs. Frieda Berryhill, Chairman Mr. Steven C. Sholly l
Coalition for. Nuclear Power Plant Union of Concerned Scientists l
Postponement 1346 Connecticut Avenue, NW 2610 Grendon' Drive Dupont Circle Building, Suite 1101 Wilmington, Delaware 19808 Washington, DC 20036 l
Gail Phelps ANGRY 245 W. Philadelphia Street York, Pennsylvania 17401
- Judge Reginald L. Gotchy N~~
W-Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission James M. Cutchin, IV Washington, DC 20555 Counsel for NRC Staff
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