ML20053D286

Motion to Strike ASLB 820524 Amicus Brief.Aslb Failed to Make Any Effort to Conform to Commission 820506 Order Re Svc on Parties.Failure to Serve Brief in Timely Fashion Cost Intervenor 5 of 10 Days Provided to Reply to Brief

ML20053D286
Person / Time
Site:	South Texas
Issue date:	05/29/1982
From:	Sinkin L Citizens Concerned About Nuclear Power, INC.
To:	NRC COMMISSION (OCM)
Shared Package
ML20053D287	List: ML20053D286 ML20053D292
References
NUDOCS 8206040266
Download: ML20053D286 (3)

Text

_ - _ - _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _

t

• h UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATOPY COMMISSION

' n'~

CITIZENS CONCERNED ABOUT NUCLEAR POWER (CCANP)

MOTION TO STRIKE AMICUS BRIEF OF THE ATOMIC SAFETY AND LICENSING BOARD PANEL On May 6, 1982, the Nuclear Regulatory Commission issued an Order setting forth a briefing schedule for the Commission's review of ALAB-672.

In its Order, the Commission said: "A party's initial brief shall be in the hands of the Commission and the other parties no later than 15 days after the date of this Order." The due date for delivery to the Commission and the parties was May 21, 1982.

Contrary to the expressed directive of the Commission and with no showing of, or even attempt to show, good cause pursuant to 10 C.F.R.

Section 2.772(c), the Atomic Safety and Licensing Board Panel did not deliver their brief to Citizens Concerned About Nuclear Power until Monday, May 24, 1982 in San Antonio, Texas.

By that time, CCANP's representative had already taken the timely received briefs of the Applicants and NRC Staff to Austin to work on preparing the reply brief due on June 1, according to the Commission's May 6 Order. Only by chance, through a call from the attorney for Citizens for Equitable Utilities, the other intervenor in this proceeding, did CCANP's representative learn of the existence of the Panel amicus brief on Tuesday, May 25.

On Wednesday, May 26, CCANP's representative returned to San Antonio to find the Panel amicus brief had been mailed May 20, 1982 with $.71 postage, according to the postage meter stamp on the envelope. A neighbor informed CCANP's representative that the envelope had arrived on May 24.

On Thursday, May 27, CCANP received telephoned notice from the Commission that the Panel amicus brief was accepted and that responsesidue June 1 were to include responses to the amicus.

CCANP moves to strike this brief based on the failue of the Atomic Safety and Licensing Board Panel to make any effort to conform to the Commiasion's May 6 Order regarding service on the parties. (CCANP assumes the Commission was timely served.) The brief itself is dated May 11, 1982 and was, therefore, held back from mailing for 9 days.

CCANP is the party filing the initial recusal motion. CCANP is also 8206040266 820529 PDR ADOCK 05000498 g$G3

//

, b the target of the Panel's criticisms. CCANP obviously deserved every I opportunity to respond to this brief. Instead, the Panel delivered the brief in such a way that CCANP lost five of the ten days (including delivery 1 time) provided for the reply brief.

When CCANP moved for a seven day extension on the briefing times announced by the Commission on May 6, the Commission denied the motion.

In their opposition to the CCANP motion, the NRC Staff said: "(w) hen a party elects to take part in a Commission proceeding, one takes on tne duties and responsibilities of meeting the times set in Commission orders."

CCANP assumes the Commission's regulations and orders apply to the Licensing Board Panel.

There is also a substantial policy ground for striking this brief.

Judge Hill decided not to recuse himself. The Appeal Board reversed that l decision.

In his cover letter requesting the Commission accept the amicus brief, the Chairman of the Licensing Panel cites 42 U.S.C. Section 2241 and 10 C.F.R. Section 1.1 as the authority for his riaking such a request.

Nowhere within the cited authorities is their any suggestion the Licensing Panel can or should file an amicus brief when a decision of a Panel member l has been reversed by an Appeal Board.

If the Commission permits such an amicus, there will be a precedent for Licensing Panel briefs if any decision by an ASLB is overturned on appeal.

l Similarly, the Appeal Board Panel would be entitled to file briefs if an Appeal Board decision was itself appealed. In fact, in the instant case, the Appeal Board Panel would seemingly be justified to answer the attacks on the the Appeal Board by the Panel and generally to file an amicus, if the Panel amicus is considered acceptable.

The opportunity for a Licensing Board member to set forth reasons for a decision (or in this case refrain from providing any response other than a refusal to grant the motion) comes at the time of decision. Judge Hill made his choice. The Licensing Panel should not be filing its own views on this matter.

The precedent for the Cocmission of admitting the Panel amicus i would be terrible. The finality of initial decisions and the integrity of the appeal process are at stake. Regre ably, the Panel did not Footnote 1 next page l

. ~ . _ _ - -

i.

request permission to file the amicus in advance of actually filing it.

Had the Panel done so, the Commission might have benefitted from all parties responding to such a request. The Panel foreclosed that possibil - ry, so CCANP has no choice but to move to strike the brief.

For the above and foregoing reasons, CCANP moves the Commission to strike the Panel amicus brief.

Respectfully submitted, ,

4y to " t Lanny Alan Sinkin for the intervenor, CITIZENS CONCERNED ABOUT NUCLEAR POWER 838 East Magnolia Avenue San Antonio, Texas 78212 (512) 734-3979 May 29, 1982

1. "NRC Staff Response to CCANP Motion for Extension of Time to i Respond to Commission Order of May 6, 1982" (May 18, 1982) at 3.

I l

l l

r l

i I

i i

l l

l t

I i _. - . . . _ . . - . ., , .. - --