ML19331B240

Responds to Saginaw Intervenors' 730126 Contention That Applicant Response to Saginaw 730107 Motion Is Untimely. Saginaw Failed to Exclude Weekends Per 10CFR8.3(c). Certificate of Svc Encl

ML19331B240
Person / Time
Site:	Midland
Issue date:	01/30/1973
From:	Reis H LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Goodman C, Hall D, Murphy A Atomic Safety and Licensing Board Panel
References
NUDOCS 8007280833
Download: ML19331B240 (5)

Text

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( 4 LAW CFFICEO NEWMAN, REIs & AXELRAD 5000 CONNECTICUT AVENUE N. W. ,,

WASHINGTON. O. C. 20036 setsm. teman 202 296 7555 1

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January 30, 1973 i

$ Arthur W. Murphy, Esq., Chairman Dr. David B. Hall Atomic Safety and Licensing Board Los Alamos Scientific Laboratory

. Columbia University School of Law P. O. Box 1663 j Box 38, 435 West 116th Street Los Alamos, New Mexico 87544

! New York, New York 10027 Dr. Clark Goodman Professor of Physics i University of Houston 4 3801 Cullen Boulevard . -

Houston, Texas 77004 .

~

4 Re: Consumers Power Company

! Midland Plant Unj.ts 1 and 2 _ _

! Docket Nos. 50-32Oand 50-330 Gentlemen:

In his latter of January 26, 1973, Mr. Cherry, counsel for Saginaw Intervenors, contends that Applicant's response to Intervenors' motion of January 7, 1973 is out-of-time.

Mr. Cherry's contention is clearly incorrect under

10 CFR 2.710 and the interpretation thereof by the AEC General Counsel which is contained in 10 CFR 8.3(c) . Section 2.710 of the Commission's rules of practice reads as follows

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In computing any period of time, the day

,' of the act, event, or default after which the designated period of time begins to run is not

, included. The last day of the period so com-

. puted is included unless it is a Saturday, Sunday, or legal holiday at the place where the action or event is to occur, in which event the period runs until the end of the next day

which is neither a Saturday, Sunday, nor holi-i day. When the period of time is less than I seven (7) days, intermediate Saturdays, Sundays ,

and holidays are excluded. Whenever, a party 8007280 h D h  ;

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Arthur W. Murphy, Ecq. Jcnunry 30, 1973 Dr. Cicrk Goodman Ptgo 2 Dr. David B. Hall has the right or is required to do some act or take some proceeding within a prescribed ,

period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three (3) days shall be added to the prescribed period.1 1 An interpretation of this section is con-

, tained in S 8.3 of this chapter. -

(footnote in original)

The interpretation of the above-quoted section in 10 CFR 8.3(c) _

reads:

(c) An example of a computation of- time based upon the foregoing paragraphs is as -

follows: If a petition for leave to intervene under S 2.714 (a) of this chapter were filed ~ --

and served by mail on a Friday, S 2.714 (b)' of ~ _-

this chapter prescribes 5 days to reply.

Since 5 days is less than 7 days, Saturday and Sunday would be excluded because they are an intermediate Saturday ana c.tnday. Monday would be the first da'y counted in determining when the answer to the petition must be filed. The

. 5 days allowed in S 2.714 (b) of this chapter would end on the next Friday. Three additional days would be allowed because of service of the petition by mail, but Saturday and Sunday would be excluded, as an intermediate Saturday and Sunday, thus making the last date for filing an answer fall on the following Wednesday.

In this instance, January 7, the day on which the motion was filed, is excluded by virtue of the first sentence of 10 CFR 2.710. The five day period begins to run on Monday, January 8.

January 8, 9, 10, 11 and 12 are included, and, since +.he motion was served on Applicant by mail and the period for answer is less than seven days, three more days are added to the period.

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.uw:4.s.v. n z 3 a .s.c2:.a.m Arthur W. Murphy, ECq. January 30, 1973 Dr. Clark Goodman Page 3 Dr. David B. Hall Mowever, January 13 was a Saturday and January 14 was a Sunday and are excluded under 10 CFR 2.710 and the interpretation of that provision contained in 10 CFR 8.3 (c) . The additional three days added to the period are, therefore, January 15, 16 and 17. Applicant's response was filed on January 17. It is, therefore, timely.

Mr. Cherry's contention that the Regulatory Staf f's answer was out of time is also incorrect. The Staff had thirteen days to respond to the motion. Ten days are provided for under 10 CFR

2. 730 (c) , as amended effective August 28, 1972 (37 F.R. 15132, July 21, 1972), and three additional days are provided because service was by mail. The thirteenth day was Saturday, January 20, 1973. However, by virtue of the second sentence of 10 CFR 2.710 the time period to respond was extended to Monday, January 22r the -

day on which the Regulatory Staff did answer. Accordingly, its answer was also timely. _.

Respectfully submitted, _

Newman, Reis & Axelrad _

hd4 i (44W

. / ' Harold F . Reis ,

Attorneys for Applicant 9

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• UNITED STATES OF AMERICA ".

. ATOMIC ENERGY COMMISSION .

. In the Matter of )..

) '.

CONSUMERS POWER COMPANY- ) Docket Nos. 50-329 and 50-330 (Midland Plant, Units 1 and 2) )  ; .

CERTIFICATE OF SERVICE I hereby certify that copies of the attached letter to o

the Atomic Safety and Lice.nsing Board, dated January 30, 1973, have bben served on the following in person or by deposit in ,

the United States mail,. first class, this 30th day of January, '

1973. ' ' -

Alan S. Rosenthal, Esq. , Chairman William J. Ginster, Esq.

Atomic Safety and Licensing Suite 4, Merrill Building

~ Appeal Board Saginaw, Michigan 48602 U. S. Atomic Energy Commission Washington, D. C. 20545 . Mr. Frank W. Karas (20)

Chief, Public Proceedings Branch Dr. John H. Buck, Member Office of the S_ecretary of the Atomic Safety and Licensing Commission Appeal Board . U. S. Atomic Energy Commission _..

U. S. Atomic Energy Commission Washington, D. C. 20545 -

Washington, D. C. 20545 James A. Kendall, Esq. -

William C. Parler, Esq. , Member 135 N. Saginaw Road Atomic Safety and Licensing Midland, Michigan 48640 ,,

Appeal Board .

U. S. Atomic Energy Commission .

David E. Kartalia, Esq.

Washington, D. C. 20545 U. S. Atomic Energy Commission Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Board Milton R. Wessel, Esq.

Columbia University School of Law Kaye, Scholer, Fierman, Hays Box 38, 435 West 116th Street and Handler New York, New York 10027 425 Park Avenue New York, New York 10022 Dr. Clark Goodman .

Professor of Physics James N. O'Connor, Esq.

University of Houston 'The Dow Chemical Company 3801 Cullen Boulevard. 2030 Dow Center Houston, Texas 77004 Midland, Michigan 48640 Dr. David B. Hall Myron M. Cherry, Esq. (2)

Los Alamos Scientific Laboratory One IBM Plaza P. O. Box 1663 Chicago, Illinois 60611 Los Alamos, New Mexico 87544 -

1 Irving Like, Esq. -

Reilly, Like.and Schneider 200 West Main '

. Babylon, New York 11702 Fon. William E. Ward Essistant Attorney General State of Kansas Topeka, Kansas 66612 Howard J. Vogel, Esq.

Knittle & Vogel 814 Flour Exchange Building Minneapolis, Minnesota 55415

((4,f f Harold F. Reis

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