ML20107K485

Requests Reconsideration & Denial of Citizens Concerned About Nuclear Power Request for 10-day Extension for Filing Petition for Reconsideration of ALAB-799.Certificate of Svc Encl.Related Correspondence

ML20107K485
Person / Time
Site:	South Texas
Issue date:	02/25/1985
From:	Gutterman A NEWMAN & HOLTZINGER
To:	Edles G, Johnson W, Moore T NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#185-779 ALAB-799, OL, NUDOCS 8502280300
Download: ML20107K485 (5)

Text

• .

9 _ _ _ , _

, , a @ COMN"'"

'il~ 00CMETE0 /'

NEWMAN & HOI!rZINOER, P. C. USMc 1815 L STREET, N. W.

,,, WAS HINGTON, D. C. aO O36 '85 FEB 27 P1 :48 wituaM E.BAEn, Jet.

JOHN E. MOLTItNGER.JR-

",^"*$,'"/d'o,

., , zoa-ess-esoo DoveLAS L.SCmESFORO A.SOu.N .T,J CFFICE OF SECRETAiq J^","li'*@

, E AuL u .ECa 00CKETihG & SE8WCL STEVEN a r= ANT 2

.EO EL.EO.A. BRANCH

. E ATHLEEN H. SMEA n '^" * *'*"

STEVEN e. 0L oSE=.

DAVID G. POWELL J LL E. 8 DOUOLAS S.6#EEN .

RAAOL LYN NEwMAN DESOAAM L MAWEINS l N ' h*4 .. f .

• ALISON LesASTER*

' JA ES S VAS LE . " * '

EVIN J. L ed

=",.."?'0*" * ~ ~ " "- --

KEVIN P.SALLEN OONALD J. SILVERJAN TMoseAS A SCMMUT2 JACOLYN A.SIMMONS

- MiCnAEL r. wtaLT JOSten E.SiuSSS 1 aOSE=T s.waiTE February 25, 1985 *^*"'a-ROSCRT LOWENSTEtts l

NOstleAN A.FLAMINGAM

.,E. ,

Gary J. Edles, Esq.

Chairman, Administrative Judge '

Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. W. Reed Johnson Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission

- Washington, D.C. 20555 Thomas S. Moore, Esq.

Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Houston Lighting & Power Co., et al.

South Texas Project, Units 1 aH T Docket Nos. 50-498 OL, 50-499 OL Gentlemen:

On Friday, February 22, we received a copy of the  !

February 21 letter from Mr. Sinkin to the Appeal Board.

Mr. Sinkin's letter stated that CCANP requested agreement from~the other parties.to this proceeding for an additional

. fourteen days until March 8,-1985 in which to file its motion for reconsideration, and that there was no objection from the other parties. Mr. Sinkin's letter of February 22 stated that the February 21 letter-should have stated that the NRC Staff took no position on CCANP's request. We i

B502200300 850225 PDR ADOCK 05000498 fD5 _ , .

31

- NEWMAN & HOLTz1NGEn. P.C.

Atomic Safety and Licensing Appeal Board.

February 25, 1985 Page Two understand that before the second CCANP letter the Appeal Board granted the unopposed CCANP request.

The background is as follows. On February 20, Jack  :

Newman received a phone call from Mr. Goldstein requesting HL&P agreement.to a ten day extension of the time for CCANP ,

to file a Petition for Reconsideration of ALAB-799.

Mr. Newman asked when the time for such petitions expired and Mr. Goldstein replied Friday, February 22. On the basis of that representation, I phoned Mr. Goldstein and told him HL&P would not object to a ten day extension.

Applicants would note that they agreed to an extension i

of 10 days, not 14, but more importantly that they relied on the representation of CCANP that its time for filing would not expire until February 22. Upon review, however, it appears that the last day for filing a Petition for Reconsidera-tion was February 19, and that CCANP's February 21 request for an extension was not timely.

1

The time for filing a Petition for Reconsideration is "within ten days after the date of the decision." 10 CFR j'

S 2.771(a). Although CCANP apparently seeks to rely on

'Section 2.710 for an additional five days, the five day

. extension allowed by the next to last sentence of section 2.710 is not applicable to a Petition for Reconsideration because the time for filing of such a petition runs from "the date of the decision," not "after the service of a notice or other paper." */ Therefor, the time for filing a Petition for Reconsideration had expired before CCANP's

request to the Appeal Board, and even before its request to 1 HL&P.

- Thus, it appears that the Appeal Board's grant of the CCANP request was premised on 4

! 1. an incorrect representation of the position of the NRC staff;

• / This interpretation of the rules is in accord with Federal courts' interpretation of the parallel to l

Section 2.710 in the Federal Rules of Civil Procedure,

[ Rule 6 (e) . See Sonnenblick-Goldman Corp. v. Norwalk,

-420 F.2d 858, 860 (3rd Cir. 1970); Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972); Merrill Lynch,

Pierce, Fenner & Smith v. Kurtenbach, 525 F.2d 1179 (8th Cir. 1975).

I'

?.

NEWMAN & HoLTz1Nosa. P.C 4

Atomic Safety and Licensing Appeal Board February 25, 1985 Page Three

2. an incorrect representation of the period of extension agreed upon by Applicants;

3. agreement of Applicants which was based on an incorrect representation of the deadline for filing; and

4. a request which was itself filed out of time without any showing of good cause for lateness. */

.For all of these reasons Applicants request that the Appeal. Board reconsider its grant of CCANP's request and deny it.

Respectfully submitted, h%-

Alvin H. Gutterman Of Counsel:

L Newman & Holtzinger, P.C.

l -1615 L Street, N.W.

Washington, D.C. 20036 Baker & Botts 3000 One Shell Plaza Houston, TX 77002 i

Attorneys for HOUSTON LIGHTING & POWER COMPANY, Project Manager of the South Texas Project, acting herein on behalf of itself and the other Applicants, CITY OF SAN ANTONIO, TEXAS, acting by and through the City Public Service Board'of l

the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF. AUSTIN, TEXAS.

i cc:J' Certificate of Service l

l-

• / A request for extension of time must be filed before expiration of the period sought to be extended. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-ll7, 6 AEC 261 (1973); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-144, 6 AEC 628 (1973).

i L1

. ~ . .

f o

UNITED STATES OF AMERICA 00gCEO NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING' APP S BR@ g pj:4g In the Matter of ) 0FflCE OF SECRUAR f 4

. 00CKETING & SERVICE

)

Docket Nos.' h I 8 OL HOUSTON LIGHTING & POWER, )

. COMPANY, ET AL. ) 50-499 OL

-~ '

). ) ?P (South Texas Project, Units 1 ) '_ .

dl Z,.

and 2) ) ** * ~ ~ 4=- a - ~~ ~

CERTIFICATE OF SERVICE I hereby certify that copies of the February 25, 1985, letter to the Appeal Board from A. H. Gutterman have been

. served on the following individuals and entities by deposit in the United States mail, first class,' postage ~ prepaid on this'25th day of February, 1985.

Gary J. Edles, Esquire Thomas S. Moore, Esquire Chairman, Administrative Judge Administrative Judge

- Atomic Safety and Licensing Atomic Safety and Licensing 4 Appeal Board .

. Appeal Board

, U.S. Nuclear Regulatory. U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. W. Reed Johnson Brian Berwick, Esq.

Administrative Judge Assistant Attorney General Atomic Safety and Licensing for the State of Texas i Appeal Board Environmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548, Capitol Station Washington, D.C. 20555 Austin, TX 78711 l Charles Bechhoefer, Esq. Ray Goldstein, Esq.

I- Chairman, Administrative Judge Gray, Allison & Becker Atomic Safety and Licensing 100 Vaughn Building Board Panel 807 Brazos l U.S. Nuclear Regulatory Austin, TX 78701-2553 Commission l Washington, D.C. 20555 Kim Eastman, Co-coordinator l Barbara A. Miller Dr.. James C. Lamb, III Pat Coy Administrative Judge Citizens Concerned About

l. 313 Woodhaven Road Nuclear Power l- Chapel Hill, NC 27514 5106 Casa Oro l

San Antonio, TX 78233 L

c t

i Judge Ernest E. Hill Lanny Sinkin Hill Associates Apartment #304 210 Montego Drive 3022 Porter Street, N.W.

Danville, CA 94526 Washington, D.C. 20008 Mrs. Peggy-Buchorn Robert G. Perlis, Esq.

Executive Director Office of the Executive Legal Citizens for Equitable Director Utilities, Inc. U.S. Nuclear Regulatory Commission Route 1, Box 1684 Washington, D.C. 20555 Brazoria, TX 77422 Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4