ML20042B274
| ML20042B274 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/22/1982 |
| From: | Baxter T METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8203250168 | |
| Download: ML20042B274 (15) | |
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March 22, 1982 CM Kr T,ED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
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(Restart)
(Three Mile Island Nuclear
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u) *A Station, Unit No. 1)
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REcElkEQ LICENSEE'S ANSWER TO THE UCS MOTIONS m
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-9 FOR EXTENSIONS OF TIME TO FILE BRIEFS AND FOR WAIVER OF PAGE LIMITATION
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Introduction to On December 14, 1981, the Atomic Safety and Licensing Board in this proceeding issued its Partial Initial Decision on Plant Design and Procedures, Separation, and Emergency Planning Issues.
Pursuant to this Atomic Safety and Licensing Appeal Board's Order of January 29, 1982, any exceptions to the Licensing Board's Partial Initial Decision were to have been filed on February 8, 1982.
Pursuant to.10 C.F.R.
S 2.762(a) and the guidance provided in the Licensing Board's decision (I.D.,
t 2028), a brief in support of any party's exceptions were to have been filed within thirty (30) days thereafter (forty (40) days in the case of the NRC Staff).
Exceptions to the Licensing Board's Partial Initial Decision were filed on February 8, 1982 by Licensee, the Aamodts, the Union of Concerned Scientists ("UCS"), and the dh 8203250168 820322 PDR ADOCK 05000289 hl G
Commonwealth of Pennsylvania.
Thirty days thereafter -- by March 10, 1982 -- Licensee, the Aamodts and the Commonwealth each filed a brief in support of their exceptions.
UCS served a brief by various means on March 12, 13 and 15, 1982, a;com-panied by a " Motion for Extension of Time to Complete Briefing Exceptions."
On March 16, 1982, UCS filed a ".
. Motion for Extension of Time for Filing Brief on Exceptions and for Waiver of Page Limitation."
In its Memorandum and Order of March 16, 1982, the Appeal Board invited interested parties to respond to the 1/
UCS motion.~
As the Appeal Board noted, UCS has made three s
requests.
Both motions seek an extension of time until April 5, 1982, to brief the exceptions which UCS did not address in the brief UCS has served.-2/ The second motion seeks permission to file the brief served after the March 10 due date and an expansion of the page limitation to 125 pages.
II.
Request to Accept Served Brief for Filing on the morning of March 12, 1982, the undersigned telephoned the offices of Ms. Ellyn R. Weiss, counsel for UCS, to inquire as to the whereabouts of the UCS brief, which had t
1/
Cf. Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit No. 1), ALAB-424, 6 N.R.C. 122, 125 (1977).
2/
The second motion also seeks permission to file on or Eefore April 5, 1982, the tables of contents and authorities which are required for any brief in excess of 10 pages.
See 10 C.F.R. S 2.762(c).
not yet arrived at the of fices of Licensee's counsel as would have been expected if the brief had been mailed on March 10..
I was informed that Ms. Weiss was not in the office and that the brief was being prepared for filing that day.
I remarked that the brief was due on March 10.
Very late in the day, Mr. Jordan, an attorney with Harmon & Weiss, and Mr. Pollard, an employee of UCS, telephoned to report on tha status of the brief.
Two points are not in dispute:
the tendered UCS brief was late and it was not accompanied by a motion either for leave to file out of time or for an extension of time.
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In fact, UCS apparently saw no reason even to provide any kind of an explanation of its tardiness to this Board or the other parties.
Only several days later did UCS become inspired to take notice of its clear legal obligation to seek the Appeal Board's acceptance of the UCS brief on an untimely basis.
Licensee finds the UCS behavior to be utterly contemptuous of this Board and of the Commission's Rules of Practice.
It is clear that absent a showing of extraordinary and unanticipated circumstances the Appeal Board expects to receive any motion for extension of time as to exceptions or briefs prior to the date upon which the document in ques-tion is due for filing.
Further, parties are on notice that
"[i]n no circumstances will a document be accepted by the Appeal Board on an untimely basis unless it is accompanied
-4 by a motion for leave to file it out of time, which similarly must be founded upca extraordinary and unanticipated circumstances."
Appendix A to 10 C.F.R. Part 2, IX(d) (3) ; Wolf Creek, supra, ALAB-424, 6 N.R.C.
122, 125 (1977); Southern California Edison Company et al. (San Onofre Nuclear Generating Station, Units 2 and 3), Appeal Board Order, Docket Nos. 50-361 OL, 50-362 OL (March 5, 1982).
It must be recognized, in addition, that these rules are not unique to the Appeal Board, to this agency, or to Federal administrative agency practice generally.
These rules reflectfundamentalprinciplesandpolihywhichjudicialbodies
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employ to protect the integrity of their processes and to ensure that parties do not assume to themselves the authority to manage the conduct of a proceeding.
Application of these rules to the situation at bar must begin with the recognition that UCS and its counsel, Ms.
Weiss, have a great deal of experience with NRC licensing proceedings.
There is absolutely no basis for applying to UCS and its counsel anything less than the highest standards this agency requires in the conduct of parties which choose to participate in its adjudicatory proceedings.
The fact that the tendered UCS brief was not accompanied by a motion for leave to file out of time or a motion for an extension of time alone would justify its rejection.
Indeed, the language of Appendix A to 10 C.F.R. Part 2 would appear to dictate such a result.
We address,
nevertheless, the 1tter motion filed by UCS to accept the brief out of time.
UCS recognizes that it must demonstrate " extraordinary and unanticipated circumstances" for its failure:
(1) to file the brief on time, and (2) to deliver to the Appeal Board a motion for extension of time at least by March 9,1982.
UCS Motion.
., March 16, 1982, at 2.
While UCS does not assign its various arguments to particular requests, Licensee reads the motion to assert as the only basis for the late brief and the absence of an accompanying motion an argument that UCS essentially was not aware that the brief was late.-3/ It is s
asserted that UCS counsel " mis-recollected" the provisions of 10 C.F.R. S 2.710 and believed that a document could be timely under NRC rules if hand delivered within 5 days after the running of the prescribed time period.
This argument is simply incredible.
There never has been such a provision in NRC rules.
No conceivable reading of section 2.710 could leave one with the impres-sion that the extra five days are for any situation other than replying to a document served by another party by l
l mail.
Experienced counsel would ' have been called upon l
l to ascertain the correct date for filing papers under this I
rule on many occasions.
In any case, there is no explanation I
3/
The fact that Licensee's counsel raised the issue on March 12, 1982, at least should have sparked some attention by counsel for UCS and an evaluation of whether an accompanying motion was appropriate.
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of why counsel relied upon her recollection to determine the due date for a brief to the Appeal Board.
Further, there have been two occasions on which the March 10 due date explicitly was called to the attention of counsel for UCS.
First, this Appeal Board's Order of March 4, 1982, stated that "[b] riefs in support of exceptions are due to be filed on March 10, 1982."
Second, a telephone conference 1
was held on February 25, 1982, with Licensing Board Chairman Smith, Mr. Sholly, and counsel for the NRC Staff (Cutchin),
Licensee (Baxter) and UCS (Weiss).
During that conference it became necessary to discuss the scheduling of a preliminary i
hearing before the Licensing Board, and the undersigned reported that Wednesday, March 10,was the due date for briefs to the Appeal Board on the exceptions.
When Chairman Smith asked to whose exceptions that date applied, Ms. Weiss stated that it applied to all of the UCS exceptions.
When Licensee sug-gested Friday, March 12, as the date for the preliminary hearing, Ms. Weiss opposed the proposal, arguing that holding the hearing two days after the UCS brief was due would not provide her with adequate preparation time.
Counsel for UCS appeared to recognize that briefing efforts would be completed on March 10.
In short, Licensee does not believe LCS has advanced any credible basis for the late filing or for the failure to have sought leave to file the brief out of time.
Because 1
the brief was not substantially late, however, acceptance of it for filing would not seriously prejudice other parties
. or disrupt the Appeal Board's consideration of the matters briefed by UCS.
Consequently, Licensee does not oppose the, UCS request to accept the UCS brief for filing.
The brief, however, does not include the required tables of contents and authorities.
See 10 C.F.R. S 2.762(c).
For no apparent reason, UCS seeks leave to file such tables on or before April 5, 1982.
Of course, this ignores the disadvantage placed upon parties who wish to prepare a reply to the UCS brief and the hindrance imposed on the Appeal Board's review.
UCS should be ordered to file these tables promptly.
III.
Request to Extend the Time for Briefing i
the Remaining UCS Exceptions i
In its first motion, UCS asserts that it has briefed its exceptions 1 to 45 and 110 to 120.
Actually, exceptions 118 and 119 do not appear to have been briefed.
(Exception 120 is addressed in the brief as exception 118.)
Even though UCS did not even get half way through its exceptions, the motion for extension of time was not filed in advance of the due date for the brief.
Indeed, UCS seeks an additional 26 days to brief its exceptions.
In these circumstances, it is clear that counsel for UCS was aware, in advance of March 10, that the brief would not be completed on schedule and that additional time would be sought.
There simply is no credible excuse for filing the motion late.
It reflects a flagrant disregard for the Commission's Rules of Practice.
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-g-Forced by UCS into the position of accepting the fait accompli or dismissing the remaining exceptions, the Appeal, Board, Licensee submits, should deny the motion for extension of time and dismiss the outstanding exceptions.
Three months have transpired since the Licensing Board decision was issued, and by its own admission UCS is well acquainted with the record on its issues, having filed extensive proposed and reply findings with the Licensing Board.
In this situation, there has been ample opportunity for UCS to prepare its appeal.
The Commission has held that when a participant fails to meet its obligations under applicable law and Commission s
regulations, a board should consider the imposition of sanctions against the offending party.
The Commission also has identified factors to be considered in selecting a sanction, including the relative importance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances."
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452, 454 (1981).
Here, there has been a pattern of behavior to the extent that UCS has sought numerous extensions of time since the issuance of the Licensing Board's Partial Initial Decision, and has used each of its obligations as a basis, in turn, to propose an extension of others so that all are effectively delayed.
See Attachment A.
In addition, UCS is wrong when it argues that no other party will be harmed by the granting of the UCS reque.sts.
First, segmenting the briefing of the UCS exceptions introduces a strong element of disorder.
The UCS issues often have a common theme and it is prejudicial to Licensee to address them 4/
piecemeal.-
Second, by failing to advise others in advance of its requests for additional time, UCS has disrupted the ef forts of Licensee's counsel.
In anticipation of a concen-trated effort to reply to the UCS brief, now unnecessary adjustments were made to the schedules and to the assignment of personnel to other matters.
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Most important, however, is the fact that the Com-mission has not yet made the Licensing Board's decision immediately effective.
Unless and until that determination is made, Licensee does not ignore the prospect that the Appeal Board's review could become critical to the restart of the plant.
Licensee and the public are entitled to an expeditious conclusion to this proceeding.
For all of the foregoing reasons, the UCS motion for extension of time to complete the briefing of its exceptions should be denied.
The unbriefed exceptions 4/
For example, UCS Contention 14, which has not been briefed, challenges on a general basis the classification of systems and components as " safety grade."
The UCS contentions which have been briefed essentially apply the UCS position on that question to particular systems and components.
It is impera-tive to consider the larger issue before applying those argu-ments in specific cases.
e
should be disregarded as waived.
Public Service Electric and Gas Company, et al. (Salem Nuclear Generating Station, Unit,1),
ALAB-650, 14 N.R.C.
43, 50 (1981); Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 N.R.C.
313, 315 (1978).
IV.
Request to Expand the Page Limitation If a further brief by UCS is to be accepted, Licensee does not oppose the requested expansion of the page limitation, provided that it applies as well to Licensee's brief(s) in reply to the UCS exceptions.
i With respect to the page limitation, Licensee notes that section 2.762(e) does not appear to recognize the prospect that one party may need to respond to appeals by several other parties.
Beyond its reply to the UCS exceptions, Licensee intends to file a separate brief in reply to the exceptions by the Commonwealth and the Aamodts on emergency planning is s ues.
This reply brief will be less than 70 pages in length.
Licensee is assuming, however, that under section 2.762(e) the length of its brief in reply to the UCS exceptions does not " count against" its separate brief in reply to the emergency planning exceptions.
If Licensee misreads the regulation, leave is hereby sought to establish a separate i
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4 70-page limitation on Licensee's brief in reply to the Commonwealth and Aamodt exceptions.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Thomas A.
- Baxter, P.C.
Counsel for Licensee 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1090
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Dated:
March 22, 1982 1
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ATTACHMENT A:
UCS Motions for Extension of Time Filed Since December 14, 1981 Before the Appeal Board:
" Union of Concerned Scientists' Request for Extension of Time to File Exceptions to the Partial Initial Decision of December 14, 1981," dated December 18, 1981.
Seeks extension until 10 days after comments, reply comments, and oral arguments before Commission on immediate effectiveness.
Appeal Board Order, December 23, 1981, extends time to file exceptions to February 1, 1982.
Before the Commission:
"UCS Motion to Extend Deadline for Immediate Effectiveness Comments," dated December 29, 1981.
Seeks an extension to February 15, 1982, arguing, inter alia, the effort to develop exceptions.
Commission Order, January 11, 1982, extends time to file immediate effectiveness comments to January 28.
Before the Appeal Board:
" Motion for Extension of Time to g File Exceptions," dated January 21, 1982.
Seeks extension to February 16 in view of extension to January 28 of immediate effectiveness comments, or until March 1 if the Commission grants a further extension.
Appeal Board Order, January 22, 1982, denies motion.
Before the Commission:
" Motion for Reconsideration of Order Granting in Part, and Denying in Part, Request for Extension of Time," dated January 21, 1982.
Renews request to extend deadline for immediate effectiveness comments to February 15.
Before the Commission and the Appeal Board:
" Supplement to and Request for Reconsideration of Motions for Extension of Time," dated January 26, 1982.
Renews motion to Com-mission and requests Appeal Board to reconsider denial of motion to extend filing of exceptions to March 1, 1982.
Commission Order, January 28, 1982, denies motions.
Appeal Board Order, January 29, 1982, extends filing of exceptions to February 8, 1982.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING ALPEAL BOARD In the Matter of
)
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
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(Restart)
(Three Mile Island Nuclear
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Station, Unit No. 1)
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CERTIFICATE OF SERVICE l
I hereby certify that copies of " Licensee's Answer to the UCS Motions for Extensions of Time to File Briefs and for Waiver of Page Limitation" with attachment were served i
this 22nd day of March, 1982, by hand delivery upon the parties identified by an asterisk and by deposit in the U.S. mail, first class, postage prepaid, to the other parties on the attached Service List.
"z Thomas A.
- Baxter, P.C.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD j
In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
)
(Restart)
(Three Mile. Island Nuclear
)
Station, Unit No. 1)
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SERVICE LIST o Gary J. Edles, Esquire James M. Cutchin, IV, Esquire Chairran Office of the Executive Iagal Director Atanic Safety and Licensing Appeal U.S. Nuclear Pegulatory Ccmrission Board Washington, D.C.
20555 U.S. Nuclear Pegulatory Comnission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary 0 Dr. Jchn H. Buck U.S. Nuclear Pegulatory Ccmrissicn Atonic Safety and Licensing Acpeal Washington, D.C.
20555
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Board Panel U.S. Nuclear Pegulatory emmission Jchn A. Levin, Esquim Washington, D.C.
20555 Assistant Cbunsel Pe.nnsylvania Public Utility Ccmnission 0 Dr. Paginald L. Gotchy P.O. Box 3265 Atanic Safety and Licensing Appeal Harrisburg, Pennsylvania 17120 Board Panel U.S. Nuclear Regulatory Comrission Ibbert Adler, Esquire Washingten, D.C.
20555 Assistant Attorney General 505 Executive House Ivan W. Smith, Esquire P.O. Box 2357 Chai-an Harrisburg, Pennsylvania 17120 Atcmic Safety and Licensing Board U.S. Nuclear Pegulato"; Ccarission Jchn E. Minnich Washington, D.C.
20555 Chai man, Dauphin County Board of Ccmrissioners Dr. Walter H. Jordan Dauphin County Courthcuse A ric Safety and Licensing Bo=-4 7:ent and Market Streets Panel Earisburg, Pennsylvaria 17101 881 West Cu% - M ve Oak Ridge, Tennessee 37830 Walter W. Cchen, Esgdre Office of Ccnst:rer Msocate Dr. Linda W. Little 1425 Straw!erry Square A: ric Safety and Licensing Ecard Harrisburg, Perr.syhania 17127 Panel 5000 He ritage T; rive Jordan D. Cr.ningham, Esqdre F2.leigh, 50r:.5 Carlina 27612 2220 North Second Stree:
Earisburg, Pe.nsyhania 17110
Ms. Icuise Bradford Joseph R. Gray, Esqu.tre 24I AIEC Office of the Executive Iagal Director 1011 Green Street U.S. Nuclear Regulatory Ca: mission Harrisburg, Pennsylvania 17102 Washington, D.C.
20555 Ellyn R. Weiss, Esquire Harren & Weiss
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1725 Eye Street, N.W., Suite 506 Washington, D.C.
20006 Steven C. Sholly Union of Concerned Scientists 1346 Ccnnecticut Avenue, N.W., Suite 1101 Washington, D.C.
20036 Gail B. Phelps ANGRY 245 West Philadelphia Street York, Pennsylvania 17404 William S. Jordan, III, Esquire Harron & Weiss i
1725 Eye Street, N.W., Suite 506 Washington, D.C.
20006 Robert Q. Pollard 609 bentpelier Street Baltinore, Maryland 21218 0.auncey Kepford Judith H. Jchnsrud Envircnmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 j.
Marvin I. Iewis 6504 Bradferd Terrace Philadelphia, Pennsylvania 19149 Marjorie M. Aa.odt
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I R. D. 5 Coatesville, Pennsylvania 19320 9=as J. Gernine, Esquire Deputy Attorney General Divisicn cf law - Room 316 1100 Ray:end Eculevard Newark, Nea Jersey 07102 l
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