ML18086A559
| ML18086A559 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 05/21/1981 |
| From: | Bishop C Atomic Safety and Licensing Board Panel |
| To: | Coleman A, Coleman E AFFILIATION NOT ASSIGNED |
| References | |
| ISSUANCES-OLA, LBP-80-27, NUDOCS 8105280157 | |
| Download: ML18086A559 (5) | |
Text
Christine N. Kohl, Chairman Dr. W. Reed Johnson Thomas S. Moore In the Matter of PUBLIC SERVICE ELECTRIC AND GAS COMPANY, ET AL.
(Salem Nuclear Generating Station, Unit 1)
ORDER May 21, 1981 OLA Fuel Pool Expansion)
- 1.
In a May 4, 1981, letter addressed to Dr. Harold Denton, Director of the NRC's Office of Nuclear Reactor Regulation {NRR), intervenors Alfred c. Coleman, Jr., and Eleanor G. Coleman move "for an injunction to preserve status quo" in this spent fuel pool expansion proceeding.
The Colemans, in e~sence, seek to stay the Licensing Board's October 27, 1980, decision authorizing the is-suance of the license amendment necessary for the pool expansion (LBP-80-27, 12 NRC 435 (1980)) and to prohibit
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further reracking.~ The Commission's regulations provide that an application for a stay of a licensing board decision
. should be filed with either the appeal board or the licensing board.
See 10 C.F.R. 2.788(f), 2.72l(d).
In view of this regulation and the fact that the Colemans' appeal on the merits is pending our consideration, we will treat the 2/
Colemans' stay request as though it were filed with us.~
- 2.
The request for stay, filed more than six months after service of the Licensing Board's decision, is untimely and must therefore be denied.
The Commission's regulations provide that such requests be filed within 10 days of service of the Board's decision.
Failure to comply with this requirement warrants denial of the stay -.
request.
Public Service* co.' *of New Hampshire *(Seabrook Station, Units 1 and 2), CLI-77-27, 6 NRC 715 (1977).
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Mr. Coleman orally requested a stay at the appellate argument held in this case on April 30, 1981, in the*
belief that 10 C.F.R. 2.788(g) permits such oral re-*
quests.
App. Tr. 7.:...a.
That regulation authorizes oral applications for stays to maintain the status quo, but only "[i]ri extraordinary cases., where prompt application' is made."
An application for a stay six months after a licensing board decision is not "prompt."
We therefore advised intervenors that they should file any stay request with us in writing.
Applicants, Publ*ic* Service Electri*c *and *Gas* Company, et al., and the NRC staff oppose *tbe request for a staY:-
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Denial is particularly appropriate here, given the inordinate lapse of time since issuance of the Board's decision and the absence of any convincing explanation by the intervenors for
_y the delay.
- 3.
Even if the Colemans' request for a stay were timely, we would still be obliged to deny it for failure to satisfy the stay criteria specified in 10 C.F.R. 2.788(e).
That provision requires us to consider:
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(1) Whether the moving party has made a** strong showing that it is likely to pre-vail on the merits; The intervenors' comments at oral argument (App. Tr.
7-8) and in their letter suggest a misunderstanding of the Commission's regulations.
Apparently the Colemans believe(d) that the filing of exceptions to an initial decision automatically stays the *effective-ness of the decision while the appeal is pending.
On the contrary, the regulations provide that decisions authorizing operating license amendments become ef-fective immediately, unless the licensing board orders otherwise.
10 C.F.R. 2. 764; compare 10 C.F.R. Part 2,'
Appendix B, Sec. 4.
Intervenors' misapprehension of the agency's rules, however, cannot excuse their long delay in requesting a stay, particularly since the Licensing Board expressly ordered its decision to take effect immediately.
12 NRC at 458.
The Colemans' position is further undermined by the fact that they moved.for a stay, not *.only* six months after the, de-cision, _:-:but also more "than* three* months" after the license amendment itself was* issued (along with *a riot ice certifying.*sery_ice of the"' 'amen'dment on '!:he colemans).
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(2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.
See also Kansas Gas and Electric Co. (Wolf Creek Station, Unit No. 1), ALAB-412, 5 NRC 1415, 1416 (1977).
The Colemans' 4/
stay request addresses none of these points.-
As we have held in the past, intervenors' failure even to a~tempt to satisfy their burden of persuasion on these four criteria "give[s] us little choice other than to deny the motion for a stay."
Publ*ic* se*rvice co. of Tndian*a,* Tnc. (Marble Hill Station, Units 1 and 2), ALAB-493, 8 NRC.253, 271 (1978).
_ii Indeed, the stay motion apparently is grounded on the intervenors' belief that applicants aie acting "as if to be above the law" by (1) having ordered the new spent fuel racks before filing the license amendment application, and (2) beginning to rerack the pool at Salem Unit 1 "while an appeal is pending resolution."
Of course, neither of these actions constitutes a viola-tion of the law.
First, a:*company'sdecision simply to order certain equipment in advance of agency approval to use it is made at the company's own risk.
- Moreover, knowledge of the exact specifications of the equipment is necessary so that the staff will be better able to eval-uate the application for i;:nvironmental_ -impact and com-pliance. with agency safety regulations. Second, as discussed in note 3, supra, the pendency of an appeal does not automatically stay the effectiveness of a decision authorizing the issuance of a license amendment.
As soon as the Director of NRR issues the amendment, an applicant may lawfully begin the authorized activity
-- subject, of course, to any orders later issued on appeal.
Thus, applicants here were not acting "above the law" insofar as they began reracking the spent fuel pool at Salem Unit 1 following the issuance on February 2, 1981, of the license amendment authorizing this activity.
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- i:n the circumstances of this case, we have nonetheless considered these factors on our own and conclude that no basis exists for staying.the Licensing Board's decision' and enjoini~g further reracki~g of the spent fuel pool pending our decision on the merits.
In particular, we are unable to perceive any irrepa*rable harm to intervenors from continued reracking absent a stay.
On the* other* hand, with reracking *lawfully underway (see note 4, *s*upra),- it is likely that a grant of a stay would result in added costs and disruption for applicants and perhaps eventually the public.
The Colemans' request for a stay is den*i;ed.
It is so ORDERED.
FOR THE APP.EAL BOARD c.~~
C.
an BiShOP secretary to the Appeal Board