ML20207L871
| ML20207L871 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/05/1987 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2122 OLA, NUDOCS 8701130010 | |
| Download: ML20207L871 (6) | |
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January 5,1987 UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICEMSING BOARD t
In the Matter of
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Docket Nos. 50-250 OLA-1 FLORIDA POWER & LIGHT COMPANY )
50-251 OLA )
I (Turkey Point Plant, Units 3 and 4)
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(Vessel Flux Reduction)
STAFF RESPONSE TO INTERVH110RS' MOTION FOR EXTENSION OF TIME I.
INTRODUCTION On November 20, 1986, Florida Power and Light Company (Licensee) filed its " Motion To Relinquish Jurisdiction and Terminate Proceeding."
Responses to the Licensee's motion were to be filed on December 5 and 10, 1986 by the Center for Nuclear Responsibility and Joette Lorion (Intervenors) and the NRC staff, respectively.
The Staff timely filed its response.
However, by motion dated December 15, 1986, Intervenors request, pursuant to 10 C.F.R.
I 2.711(a), an extension of time to file their response. Intervenors' Motion For Extension To Respond To Licens-ee's Motion For Termination of Proceeding" (hereafter " Motion"). II As grounds for their Motion, Intervenors list factors which purportedly con-stitute good cause for their late filing.
For the reasons set forth below,
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Also filed that same date, was "Intervenors' Response To Licensee's Motion To Relinquish Jurisdiction and Terminate Proceeding" (hereaf-ter "Intervenors' Response"). Therein Intervenors challenge Licens-
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ee's assertion that the an ECCS analysis using the corrected BART
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code would meet the applicable criteria of 10 C.F.R. Part 50, Appen-dix K, and 10 C.F.R. 550.46.
Intervenors' Response at 3-4.
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8701130010 870105 PDR ADOCK 05000250 G
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', the Staff believes Intervenors have not shown good cause for their late filing and the Staff thus opposes the Motion.
II. DISCUSSION Section 2.711 of Part 2 of the Commission's regulations provides in relevant part that "the time prescribed [by the regulations or fixed by a board] may for good cause be extended by the... presiding officer."
In addition, the Commission has also stated that requests for extensions of time should be received by the Board well before the time specified expires.
Statement of Policy On Conduct of Licensing Proceedings, CLI-86-8,13 NRC 452, 454-55 (1981). -I As grounds for their *totion, Intervenors state that:
(1) their counsel is a sole practitioner and "the press of other business interfered with his ability to adequately address the issues presented by Licensee's termination motion before December 15, 1986;" (2) the filing of Interve-nors' Motion will not delay the proceeding since a hearing has already been held and the license amendments have issued; (3) Intervenors "be-lieve that their continued participation on this issue will both develop a
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The Appeal Board has also observed that litigants before it should make timely appifcation for en extension of time and, if a document is tendered late, it should be accompanied by a motion for leave to file out-of-time explaining boih the reason for the lateness and "why a motion for extension of time could not have not have been season-ably submitted."
Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122,125 (1977).
In addition, the Staff notes that as a result of Intervenors' late fil-ing and the references contained therein to the Staff's reply filing, the order of reply contemplated by the Commission's regulations (10 C.F.R. I 2.730(b)) has been violated and Intervenors' Response is, in part, an unauthorized reply to the Staff's response to Licens-ee's Motion.
Therefore, Intervenors' Response should be rejected.
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, g sound record and protect the public interest, since other parties...
have a vested interest in the outcome and would not protect the public interest adequately;" and (4) there is no other forum for Intervenors to raise their safety concerns. Motion at 1-2. 3_/
The above-cited reasons do not constitute good cause for the exten-sion of time.
The fact that Intervenors' counsel is a sole practitioner with other demands on his time does not constitute good cause for the extension.
The Commission has advised that:
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill its obligations imposed by and in accordance with applicable law and the Commission's regulations...
[T]he fact that a party may have personal or other obligations or possess fewer resources than others to devote to a proceeding does not relieve that party of its hearing obligations.
13 NRC at 454.
Nor does Intervenors' counsel schedule justify Interve-nors' failure to notify the Board and parties of the need for the extension prior to the December 5,1986 filing deadline. To wait ten days aftur the deadline to file its request for extension is inexcusable particularly since (1) Intervenors are represented by counsel and (2) this Doard has previ-ously observed that motions for extensions of tfine should reach the Board "no later than the day before the substantive clocument is due."
- Order, February 5,1986, at I n.1.
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As in prior requests for extensions of time, Intervenors have pat-terned their statements of " good cause" for the extension after the factors to be balanced in ruling on late intervention petitions as set forth in 10 C.F.R.I 2.714(a)(1)(1)-(v).
While the relevance of fac-tors (ii)-((v) to a showing of good cause for the instant motion is questionable these other grounds for the extension are, in any event, lacking.
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The balance of Intervenors' alleged grounds for good cause are also not persuasive.
They do not disclose any extraordinary or unanticipated circumstances necessitating the late filing.
See 10 C.F.R. Part 2, Ap-pendix A,Section IX(d)(4).
Contrary to Intervenors' assertion, their request to permit an out-of-time filing of their response to Licensee's motion to terminate the proceeding will result in delay to the proceeding since it may impact the Board's timely consideration of an otherwise unopposed motion.
Since the proceeding continues until such time as the Board terminates its jurisdic-tion and dismisses the proceeding, the fact that the license has issued and hearings have concluded is thus largely irrelevant to whether the extension will cause delay.
In addition, because Intervenors merely sus-poet, without providing any factual support, that applicable criteria would not be met if Licensee were to perform a reanalysis using the corrected BART computer model (see Intervenors' Responce at 3-4), the claim that Intervenors' continued participation on this issue will develop the record and protect the public interest ic specious.
Further, the unavailability of another forum to raise their concern similarly cannot justify the extension since neither the Motion nor Intervenors' Response provide a sufficient basis for continued adjudication on this issue. U Consequently, the requested extension should be rejected.
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If the Board should decide to grant the requested extension, and
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consider the substantive issues raised in Intervenors' Response, the Staff would briefly note that if Intervenors' Response is an attempt to request that the record be reopened, Intervenors have failed to address or satisfy the stringent procedural requirements of (FOOTNOTE COllTINUED ON NEXT PAGE) i j
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CONCLUSION In the Staff's view, Intervenors have not shown good cause for the extension of time and their motion should be denied.
Respectfully submitted, V l$tGz-f y
' Mitzi A. Y ng Counsel fo'r NRC Staff Dated at Bethesda, Maryland this 5th day of January,1987 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE 10 C.F.R. I 2.734.
Intervenors have not presented any new infor-mation la their Response, relying solely upon the Staff's Board Noti-fication, B N-8 6-21, dated October 23, 1986.
Intervenors' response is clearly not timely, and fails to adequately support with evidence its position that, contrary to BN-86-21, a different conclusion on Contention (b) would have been reached.
Intervenors have offered no supporting affidavits as required by C.F.R. I 2.734(b).
- Thus, Intervenors have proffered no basis for reopening the record.
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..> W UNITED STATES OF AMERICA NUCLEAR RRGULATORY COMMISSION
'87 JAN -7 Kil :32 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD {fQg g j,y' I?U NC" In the Matter of
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Docket Nos. 50-250 OLA-1 FLORIDA POWER AND LIGHT
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50-251 OLA-1 COMPANY
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(Turkey Point Plant, Units 3 and 4)
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(Vessel Flux Reduction)
CERTIFICATE OF SERVICE I hereby certify that copies of " STAFF RESPONSE TO INTERVENORS' MOTION FOR EXTENSION OF TIME" 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 Regu-latory Commission's internal mail system, this 5th day of January, 1987:
- Dr. Robert M. Lazo, Chairman Norman A. Coll, Esq.
Administrative Judge Steel, Hector a Davis Atomic Safety and Licensing Board 4000 Southeast Financial Center U.S. Nuclear Regulatory Commission Miami, FL 33131-2398 Washington, DC 20555
- Atomic Safety and Licensing Board
- Dr. Emmeth A. Luebke U.S. Nuclear Regulatory Commission Administrative Judge Washington, DC 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
- Atomic Safety and Licensing Washington, DC 20555 Appeal Board (8)
U.S. Nuclear Regulatory Commission
- Dr. Richard F. Cole Washington, DC 20555 Administrative Judge Atomic Safety and Licensing Board
- Docketing a Service Section i
U.S. Nuclear Regulatory Commission Office of the Secretary Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Harold F. Reis, Esq.
Newman a Holt::inger, P.C.
Joette Lorion 1615 L St., NW 7269 SW 54th Avenue Washington, DC 20036 Miami, FL 33143 Martin H. Hodder, Esq.
i 1131 N. E. 86th Street Miami, FL 33138 en,kus yge
..I nson
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