ML19224D378

Citizens Concerned About Nuclear Power Motion for Reconsideration of ASLB 790507 Order in Which Former'S Motion to Strike 790501 Notice of Appeal & Preceding Brief Was Denied.Certificate of Svc Encl

ML19224D378
Person / Time
Site:	South Texas
Issue date:	05/14/1979
From:	Sinkin S Citizens Concerned About Nuclear Power, INC.
To:
Shared Package
ML19224D379	List: ML19224D378 ML19224D381
References
NUDOCS 7907120002
Download: ML19224D378 (3)

Text

'

~

MU PUBLIC DOCU'*ENT nom; c- 4

.a UN.TED STATES OF AMERICA p. t? .g NUCLEAR REGULATORY COMMISSION I h Qh

1. /2 n

1. f4 Y' /

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD g gg In the Matter of )

)

Houston Lighting and Power )

Company, et al ) Docket Nos. STN 50-4980L

) STN 50-4990L (South Texas Project, )

Units 1 and 2) )

MOTION TO RECONSIDER Citizens Concerned About Nuclear Power, Appellee, respectfully moves this honorable Atomic Safety and Licensing Appeal Board to reconsider its order of May 7, 1979 wherein it denied ;ppellee's Motion to Strike Notice of Appeal and Preceding Brief for the following good and sufficient reasons:

I.

In its decision, this honorable Appeal Board placed great emphasis upon c'-ppellee 'sreliance on 10 CFR Sections 2.762 and Appendix A Section IX (d) (2) for establishing the standards for exceptions and briefing.

This honorable Board s tated that 10 CFR Sections 2.762 and Appendix A Section IX (d) (2) was inapplicable and that 10 CFP Section 2.714a controlled this appeal.

10 CFR Section 2.714u serves as an exception only to 10 CFR Section 2.730. It serves as an exception as to the appealability of an interlocutory order. 10 CFR Section 2.730 establishes absolutely no standards for exceptions and briefs filed in support of exceptions. Nor does 10 CFR Section 2.714e set forth any standards for exceptions or briefs filed in Qv I,

)

,g r) Q 'th 7 9 07120 00J2.

support of those exceptions. 10 CFR 2.714a does not s upers ede 10 CFR 2.762 and Appendix A Section IX (d) ( 2) except in that it alters the time for filing briefs and should not be cited for the proposition that there are no standards for exceptions and briefs filed in an appeal permitted by 10 CFR Section 2.714a.

To do so would be an unfortunate precedent. Appellants in this case have done nothing more that the equivalent of stating that the trial court erred in finding for the plaintiffs. Such a broad exception without particularization places an undue burden on the Appelate Board and the Appellee to ascertain exactly what is being urged on appeal. It should not be the burden of the Appellee to have to guess at the contentions being set forth on appeal. However, when such vague and indefinite briefing requirements and such vague and indefinite exception requirements are permitted, that is precisely what has happened in this case.

The rules governing exceptions and briefs filed in support of exceptions are presumably stated in order that all parties will know exactly what is being argued in any particular appeal.

Surely this desire for clarity would apply equalfy to all appeals.

See Consumers Power Company, ALAB-270, 3 NRC 473 (1975).

Analogy should be made to federal practice. Under federal practice, the general rule is that only final judgements are appealable. However, exceptions are made to this rule and certain designated interlocutory orders _are appealable. However, the format, thc requirements for briefing, and the specificity of briefing are not changed merely by the fact that it is an interlocutory appeal rather than an appeal fro. a final j udgement.

325 Di9

It would not make sense fer any such exception to exist nor does it make rational sense for any such exception to exist within the :ules of the Nuclear Regulatcry Commission.

The rules of practice provide -for certain exceptions to the general rule that only final judgements are appealable. But they do not set forth different bric.'ing standards than are required for an appeal from a final judgement.

"The Rules of Practice were not promulgated capriciously. They were drafted to insure that, when followed, the arguments and positions of all parties - applicants, staff, and intervenors -

would be spread fully upon the record in order to permit fair rebut tal by those holding opposing views and to facilitate our ultimate evaluation of the competing contentions. Disregard of the Rules frustrates those salutary purposes and burdens rather than assists the adjudicator's task."

Consumers Power Compary, suora at 476.

There is no basis to believe that any less stringent requirement is needed on an interlocutory appeal that on an appeal from a final judgement.

WHEREFORE PRE!1ISES CONSIDERED, A.ppellee respectfully reurges each and every element stated in its Motion to Strike the Appeal and Preceding Brief filed on May 1, 1979.

Should this motion to reconsider be denied, Appellee specifically requests a clarification of just precisely what the 'oriefing standards and notice of appeal standards are for one appealing from a pre-conference hearing order.

Respectfully submitted, r

Steven A. Sinkin Attorney for Citizens Concerned A. bout Texas  :!uclear ),r+[cyerg

,3 U t. gn u Ac.tonio,