ML20155H338

Memorandum & Order.* Govts Motion for Tolling Granted & Time for Filing Motion for Stay of LBP-88-24 Extended Until C.O.B. on Second Business Day After Govts Receive Decision Re License Authorization in LBP-88-24.Served on 881013

ML20155H338
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/12/1988
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
References
CON-#488-7263 LBP-88-24, OL-3, NUDOCS 8810200029
Download: ML20155H338 (8)

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q )b3 ocp3cirt UNITED STf.TES OF AMERICA NUCLEAR REGULATORY COMMISSION To B:112 P3 58 ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges / (, ,

Christine N. Kohl. Chairman October 12, 1988 Alan S. Rosenthal ,

Howerd A. Wilber SCRVE0 0CT 131988

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket 'Jo . 5 0-3 2 2-OL-3

) (Emergency Planning)

(Shorcham Nuclear Power Station, )

Unit 1) )

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MEMORANDUM AND ORDER By motion filed October 11, 1988, the Governments (the State of New York, Suffolk County, and the Town of Southampton) request a tolling of the time period within which to file a motion for a stay of the Licensing Board's decision in LDP-88-24. That decision, which purported to  !

resolve all remaining issues in this proceeding and authorized the Director of the Office of Nuclear Reactor Regulation to issue a full-power operating license for the Shoreham facility, was issued on September 23, 1988, and served on the parties by the Commission's Secretary on Sritember 26 by first class mail. The Governments compute that, under the Ccmmission's Pules of Practice, a motion for l

stay would be required to be filed by October 11. On the last business day preceding October 11 (i.e., October 7),

I however, we issued ALAB-902, in which we reviewed and reversed a narrow aspect of LBP-88-24 on jurisdictional 8910200029 001012 PLR ADOCK 0b000322 wh h!

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I grounds. As a consequence of that ruling, we also vacated the license authorization in LBP-88-24.

According to the Governments, this has created a i

procedural dilemma. They had intended to file a motion for a stay of LBP-88-24 on October 11. But vacation of the license authorization -- the relief they would have sought via the stay motion -- is no longer necessary as a result of our decision in ALAB-902. LILCO, however, has publicly .

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stated its intent to seek Commission review of ALAB-902.

Should LILCO succeed in having that decision overturned, the

) license authorization could be reinstated. The Governments 1 1 ,

j thus want to preserve their right to seek a stay of LBP-82-24 in that circumstance. They essentially request t

that we extend the time for filing a motion to stay

t I LBP-88-24 until at least 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> after they receive any i l

1l decision that would have the effect of reinstating the  ;

license authorization contained in LDP-88-24.1 LILCO objects to the Governments' motion on the ground that it is untimely. It argues that service of LBP-88-24 was completed on September 23 when, under 10 C.F.R.

S 2.712 (d) (1) , the Governments actually picked up a copy of  ;

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! I I In an unpublished interim order issued October 11, I l I

the Chairman of this Appeal Board, pursuant to 10 C.F.R.

S 2.787 (b) (1) , tolled the time for filing any motion to stay l LDP-88-24 until further Board order. l l

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3 that decision from the Licensing Board. In LILCO's view, i

the ten-day period in which to seek a stay, prescribed by 10 C.F.R. S 2.788(a), expired on October 3, making the i Governments' request more than a week late. LILCO argues in r the alternative that it door not object to a grant of the Governments' motion, provided that we condition it as follows:

1 LILCO does not oppose Intervenors' motion for an 4 extension tolling the deadline for filing with the i Appeal Board a motion to stay the portions of i LBP-88-24 reversed by ALAB-902 until 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> 1

after a decision reinstating the license  :

authorization reversed in ALAB-902, provided that L (1) the 48-hour period shall begin with receipt by l j Intervenors of any decision reinstating the i license authorization, (2) the Appeal Board has i

} previously approved this extension, and (3) the r

, granting of this extension shall not be deemed to

] affect in any way any party's right to bring any i matter before the Commission.

1 LILCO's Response (October 11, 1988) at 3-4. LILCO claims i

that this condition is necessary to avoid delay and prejudice to LILCO.

The NRC staff also opposes the Governments' motion as

untimely. It does not indicate what date it believes a

notion for a stay of LBP-88-24 was due. The staff notes, 1 ,

however, that requests for extensions of time are to be i j received in advance of a dccument's due date. It states i that the Governments have not justified eithe't the filing of l

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f 4 i their protective motion at "the last minute" or the request  :

for an extension itself.2  ;

The Governments' motion is timely. While all of the parties received copies of LBP-38-24 from the Licensing i

Bo6rd on September 23, the only proof of service, as required by 10 c.F.R. $ 2.712 (e) , indicates that the l Commission's office of the Secretary served that decision on the parties on September 26. The certificate of service  ;

does not indicate the manner of service, but the Secretary's

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consistent practice is to effact service by deposit in first f

class U.S. mail, unless otherwise explicitly noted on the i L

certificate. Moreover, the Secretary is delegated the i responsibility of serving all adjudicatory issuances. See l 10 C.F.R. 55 2.712(a), 1.25(g). The copies routinely made j t

available by %:th licensing boards and appeal boards over [

f many years of practice are "courtesy" copies only. They l k

contain no proof of service; are not official, "served" l

copies; and have never been used for the purpose of f

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2 The staff refers to "instructions from the Appeal Board . . . (to provide) its response within six hours after  :

receiving the Motion." NRC Staff Response (October 11,  !

1988) at 2. n.1. The staff misunderstood the Board's -

inquiry. The Board established no particular time for  !

responses to the Governments' motTon. After being notified l by LILCO on the morning of October 11 that i*. would telecopy l its response to the Board by noon that day, the Board simply attempted to elicit from the staff if,it would be filing its responso equally expeditiously.

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computing filing dates for notices of appeal, motions for stays, and tl:e like. Thus, pursuant to 10 C.F.R. I i $$ 2.788(a) and 2.710, the time for filing a motion for a

stay of LBP-88-24 expired on October 11.

i As for the staff's apparent suggestion that the

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l Governments should have filed their Motion for Tolling at least one business day in advance of October 11 (i.e.,

October 7), that, of course, was not possible here. The j issuance of ALAB-902 on the afternoon of October 7 provided the cause for the Governments to file their Motion for 3

Tolling in lieu of the motion to stay LBP-88-24. See Governments' Motion (October 11, 1988) at 2. Obviously they j

1 could not have filed their Motion for Tolling any sooner.

l We also believe that there is good cause for tolling j the time for filing a motion for a stay of LBP-88-24 until

! the issuance of any decision or order that would effectively reinstate the license authorization of LBP-88-24. At noted above, the Governments fully intended to seek a stay of i

LBP-88-24, but ALAB-902 rendered that unnecessary or at best premature. Indeed, had the Governments moved for a stay

) anyway, we likely wo11d have ordered the matter to be held in abeyance pending future action to reinstate the license I authorization. Given that, we see no reason to deny the Governments a fair opportunity to seek a stay of LBP-88-24, should the license authorization therein be effectively reinstated in the future.

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We see no basis, however, for imposing the condition requested by LILCo. 3y its terms, that condition would, for all intents and purposes, nullify the grant of the Governnents' motion because it would limit any future stay motion to thet part of LDP-88-24 reversed by ALAB-902. If the Commission overturns ALAB-902 on the merits and reinstates the license authorization -- action that would prompt the filing of a motion for a stay -- the Governments could not ask us to stay a portien of the Licensing Board's l decision already upheld by the Commission or. the merits.

Rather, the Governments would seek a stay of the major, i

j unreviewed part of LBP-88-24 on other grounds. In any event, there are so many variables that could affect the '

] future course of this proceeding that conditioning the grant of the Governments' Motion for Tolling would only add to the procedural complexities of this matter without any corresponding benefit. The delay that LILCO seeks to avoid l

with respect to a future stay motion is minimized by the 48-hour time constraint on the filing of such a motion suggested by the Governments. As for LILCO's claim of projudice, we fail to see (and LILCO does not explain) how

the extension granted here interferes with either L1LCO's ability to seek appropriate relief from the Commission in

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! connection with certain of our other rulings, or its ability }

l j to respond to any future arguments pressed by the j Governments in seeking a stay cf LBP-88-24. l t

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l The Governments' Motion for Tolling is granted. The ;

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! time for filing a motien for a stay of LBP-88-24 is extended i  :

.j until the close of NRC business (4:15 p.m.) on the second i l I i business day after the Governments' lead counsel (the firm i j i

of Kirkpatrick & Lockhart) receives any decision effectively

i r i, reinstating the license authorization in LBP-88-24.

It is so ORDERED.  !

l FOR THE APPEAL BOARD f i  !

Q[h \1 _h d C. ajan SWoemaker

]j Secretary to the j Appeal Board J ,

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The concurring statement of Mr. Rosenthal follows at p. 8. I J

i i l Mr. Wilber did not participate in this memorandum and order.  ;

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3 In this case, "filing" of the motion means receipt by i us and the parties. In addition, an affidavit from the /

Governments' lead counsel stating the date, time, and place I l

, of their receipt of any reinstatement decision must I

accompany the motion.

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Mr. Rosenthal, concurring:  !

Although in full agreement with the foregoing [

memorandum and order, I am constrained to note my belief l that the NRC staff's response to the Governments' motion was most vnhelpful. Even had its insistence that the motion was l

untimely rested on a better footing than it did, we still  !

weuld have been entitled to at least some development of the staff's views on the merits of the tolling request. (In no .

circumstances does the failure to meet a filing deadline for .

t a motion of t.his character have jurisdictional I significancs.) Yet, the staff response contained no i explanation whatever. This omission cannot be justified on the ground that the staff lacked a reasonable opportunity to present its thinking on the matter. For, apart from the fact that, in actuality, it was not directed to respond i

within a matter of hours following the receipt of the motion ,

(see supra nota 2), if necessary in order to enable an I

adequate response the staff assuredly could have informed us that it needed additional time. In this connection, it would not appeat that a large amount of such time would have been required to elaborate upon its position on cho tolling question.

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