ML20009B214

Answer in Opposition to Applicant Motion for Extension of Time Limit for Filing Application for Stay of Aslab 810630 Decision (ALAB-646) & for Review of Antitrust Decision. Certificate of Svc Encl

ML20009B214
Person / Time
Site:	Farley
Issue date:	07/13/1981
From:	Whitler J JUSTICE, DEPT. OF
To:	NRC COMMISSION (OCM)
References
ALAB-646, ISSUANCES-A, NUDOCS 8107150065
Download: ML20009B214 (7)

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.N [ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKITED "ec $i JUL14 & "I 07 -

gp Before the Commission .lUL 131981

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{Dcd.ebng & Service g Bianch In t ) O cp ALABM1A PO'.lER COMPANY ) Docket Nos. 50-348A (Joseph M. Farley Nuclear ) 50-364A Plant, Units 1 and 2 )

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l ANSklER OF THE DEPARTMENT OF JUSTICE OPPOSING APPLICANT'S " MOTION FOR EXTENSION OF TIME LIMIT FOR FILING APPLICATION FOR STAY OF APPEAL BOARD DECISION" AND APPLICANT'S " MOTION FOR EXTENSION OF TIME FOR FILING PETITION FOR REVIEllS OF APPEAL BOARD ANTITRUST DECISION."

Pursuant to 10 C.F.R. 2.730(c) the United States Department of Justice (" Department") submits this answer to the above referenced motions 01 the Applicant requesting extensions of time in whien to petition for a stay of a decision of the Atomic Safety and Licensing Board (" Appeal Board"), issued June 30, 1981, ("ALAB-646") and to petition the Commission for review of ALAB-646. For the reasons set for below the Dep6rtment urges the Commission to deny bo'h motions.

Stays of decisions of the Appeal Board are covered by 10 C.F.R. s 2.788. That Section provides that an application for a stay must be filed within ten (10) days after service of the original decision, and may be no longer than ten (10) pages, exclusive of affidavits. The section also contains very 4

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specific instructions regarding the contents of an application

.for a stay. This procedure is designed to simplify the process and to ensure that important issues are brought to the Commission's attention quickly and easily. Since applications for ext.ensions of time tend to frustrate those goals, such applications should not be granted unless there has been a strong showing of. good cause for requesting the extension and some showing of tne underlying determinations required for granting a stay: (1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Unetner the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Unere the public interest lies. The reasons t set.forth in the instant motions do riot justify the granting of an extension of time. Applicant first points to the length of the decision and the size of the record below. While this might be important in preparing a petition for review, the applicant need only look at tne five pages of license conditions attached to ALAB-646 to determine whether it should seek a stay. Applicant next points to the absence of key executive officers who aust be consulted before a proper

decision can be made. Applicant, however, has failed to identify these allegedly key officers and gives no explandtion j as to why it has not had sufficient time to contact these key officers to conduct the necessary consultation. Applicant's third point, that it needs more time for " proper consideration of the above-described matters," is simply a conclusory stateuent, derived of any reasons, and provides no basis for granting an extension of time. Finally, Applicant hints in its fourth point that if it had Iaore time it might not file for a stay at all, or it laay request a stay of only certain issues.

Tnis is similar to arguments that Applicant has advanced at various stages of this proceeding when it requested permission <

to submit seriatum filings of testimony and exhibits and pre-and post-nearing briefs. Experience has shown, however, that the Applicant has not used the additional time to narrow the numoer of issues it wishes to bring to the Commission's attention.

Granting tue motion would be tantaiaount to granting a petition for a stay. Since the Applicant has made only a superficial showing of a need f or raore time, grounded on convenience to its counsel and employees, it falls far short of establishing " good cause" within the meaning of 6 2.711, which deals with requests for extensions of time, and is completely void of tne uncerlying requirements of s 2.788, which deals with the granting of petitions for stays. Accordingly, the Department urges tne Coulais s ion to deny the Applicant's motion for a ten (10) day extension in which to file for a stay. If the Commission does not deny the motion it should refer it to tne Appeal Board for consideration since the motion was lodged with the Commission by mistake. 1/

The arguments made in Applicant's motion for an extension of time in whien to petition tne Commission for review are similar to those made in its motion for an extension of time in which to seek a stay. Applicant points to the length of tne decision and the size of the record, and asserts that more time is necessary in order to select the proper issues. 10 C.F.R. %

2.786(b) requires that the petition ue no more than ten (10) pages and also sets forth very specific instructions regarding the contents of the petition. As with a petition for a stay, tnis procedure is designed to simplify the process and get issues before the Commission quickly and easily. Extensions of

, time in view of the page limit and specificity of the petition, are an ennecessary circumvention of this procedure. A'plicant p

also points to the absence of direction from past rulings by the Commission or reviewing courts which forces the Applicant to " speculate" on tne issues " considered sufficiently important by the Commission to warrant further review." Page 4 of Applicant's Motion. This reasoning is faulty since the Applicant snould seek a review of those issues it views to be important rather than speculating on what the Commission may want to review. Indeed, there are provisions in the rules for 1/ Applicant's counsel acknowledged the error by letter of June 10, 1981, but did not amend its filings to put the issue properly before the Appeal Board.

the Commission to review Appeal Board decisions on its own motion. 10 C.F.R. s 2.786(a). Finally, Applicant's fourth point is equally unpersuasive. Applicant suggests that granting its requested extension would also give the Commission nore time to consider the. decision. Again there are specific rules covering extensions of time for the Commission to issue.

decisions on matters that it.is reviewing. 10 C.F.R. 9 2.772(e) and (f), and 5 2.786(o)(S).

For the reasons set forth above the Department respectfully urges tne Commission to deny oath of Applicant's motions seeking extensions of time.

Respectfully subaitted,

,!bII _J [

JUHN D. Wii1TLER Attorney Antitrust Division July 13, 1981 Washington, D.C.

d CERTIFICATE OF SERVICE I hereby certify that copies of the attached Answer have been served on the follo,iing by hand delivery to these indicated by asterisk and by United States Mail, postage prepaid, to the remainder this 13tn day of July, 1981.

1 w D.fr'Ar John D. Unitler Secretary Joseph Rutberg, Esq.

Nuclear Regulatory Comraission Benjamin H. Volger, Esq.

Washington, D.C. 20555 Michael B. Blume, Esq.

Antitrust Counsel Nuclear Atomic Safety and Licensing Regulatory Staff Appeal Board Panel Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Michael C. Farrar, Chairman S. Eason Balch, Esq.

Atomic Safety and Licensing Robert A. Buettner, Esq.

Appeal Board Balen, Bingham, Baker, Nuclear Regulatory Commission Hawthorn, Williams & Ward Washington, D.C. 20555 600 North 18th Street Birmingham, Alabama 35203 Richard S. Salzman, Esq. Terence H. Benbow, Esq.

Atomic Safety.and Licensing Theodore M. Weitz, Esq.

Appeal Board David J. Long, Esq.

Nuclear Regulatory Commission Hinthrop, Stimson, Putnam desnington, D.C. 20555 & Roberts 40 Wall Street New York, New York 10005

• Mr. Cnase Stepnens, Supervisor

• Martin G. Malscn, Esq.

Docketing and Service Section Majorie S. Nordlinger, Esq.

Office of the Secretary of the Office of General Counsel Commission Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Wasnington, D.C. 20555 Reuben Goldberg, Esq.

• Bennet Boskey, Esq.

Goldberg, Fieldman & Letham, P.C. D. Biard MacGuineas, Esq.

1700 Pennsylvania Avenue, N.W. Volpe, Boskey and Lyons Wasnington, D.C. 20006 918 16th Street, N.U.

Washington, D.C. 20006

p David C. Zij eltaf elt , Esq.

19G7 Sandalwood Ft. Co ll-i n s , Colorado 80526

• Bruce 11. Churchill, Esq.

Snaw, Pi t tiaa n , Potts & Trowbridge 1800 "M" Street, N nl.

ilosnington, D.C. 20036

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