ML19319C482
| ML19319C482 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 11/05/1975 |
| From: | Duflo M Atomic Safety and Licensing Board Panel |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-297, NUDOCS 8002190931 | |
| Download: ML19319C482 (9) | |
Text
_ _ _ _
p**
8 d%
tg i3
' - C^
C:
UNITED STATES OF AMERLCA NUCLEAR REGULATORY COMMISSION
- ! u o
'.x 6
ATOMIC SAFETY AND LICENSING APPEAL BOARD
- ifi/
u e
db Alan S.
Rosenthal, Chairma" NOV o.57a_ >J7 4
Michael C. Farrar, Member
{.
Richard S.
Salzman, Member cw..r e. s.._
9' w.,ss 5.crion
$l$
Ryt c
)
'~~
In the Matter of
)
)
THE TOLEDO EDISON COMPANY, et al.
)
Docket No. 50-346A
)
~ _ _.
(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
)
Messrs. Gerald Charnoff and Wm. Bradford Reynolds, Washington, D.
C.,
for the applicants,'~he Toledc Edison Company, et al.
MEMORANDUM AND ORDER November 5, 1975 (ALA3 - 297)
Yesterday, the applicants filed a motion with the Licensing Board seeking an affirmative determination that Unit 1 of the Davis-Besse facility may be licensed for operation prior to the completion of this on-going anti-trust proceeding.-1/
In the alternative, the Licensing 1/ Construction of this plant has been allcwed to continue, notwithstanding the pendency of an antitrust review, pursuant to the " grandfather" clause in the antitrust pro-visions'of the Atomic Energy Act.
Section 105c(3), 42 U.S.C.
213 5 (c) ( 3).
The questien which the applicants wish to have resolved is whether cceration is similarly
" grandfathered" should the plant be ready before the ahti-
~
trust proceeding has been completed (according to the.
applicants, a contingency not unlikely to materialize).
e
'8002'*"7 3f Q
y-o
/
2-Board was asked to certify promptly the question to us for decision.
Simultaneously with the filing of that motion, the applicants mcVed before us for an immediate direction to the Licensing Scnrd to certify the question.
The provisions of 10 CFR 2. 712 (i), as well as our decision in Public Service Co. of New Hampshire (5'eabrook Station, Units 1 and 2), ALAB-271, NRCI-75/5 478 (May 21, 197 5), were invoked.
Section 2.718(i) expressly authorizes the Commissicn, and thus this Boar 4 as its delegate, to direct certification of a question raised in a proceeding still pending before a licensing board.
In ALAB-271, we expressly held that a party to the proceeding is entitled to request us to exercise that authority.
NRCI-75/5 at 482-83.
See also our prior l
memorandum and order in this case, ALAB-290, NRCI-75/9 (September 19, 1975); Seabrook, supra, ALA3-295, NRCI-75/10 (October 28, 1975).-2/
Although there thus can be no doubt respecting our power to grant the relief sought of us by the applicants, we nonetheless believe it would be inappropriate to direct certification at this time.
There may well be merit to
~~2/ In asking for a certification direction, applicants j
also referred to 10 CFR 2.785(d).
That section is 1
concerned, hcwever, with rhe certification of cuestions by an appeal board to the Ccmmissica.
It 13, therefore, l
incpposite here.
a i
. the applicants' insistence that the question which they have raised is worthy of definitive resolution at an early date; indeed by its very nature the question obviously must be decided at an interlocutory stage of the antitrust prcceed-ing or not at all.
But it has not been satisfactorily explained to us why we must step in before the Licensing Board has passed upon the question (after having first obtained the views of the other litigants).
As observed in Seabrook, ALAS-271, supra, "if at all, the need to reach down for an issue is more likely to sur-face after, and not before, the Licensing Board has itself spoken on the issue."
NRCI-75/5 at 482.
That observation fully applies here.
For one thing, upon its own examina-tion of the question the Licensing Board may decide it in the applicants' favor; if this should come to pass, the applicants will no longer require our intervention (although, to be sure, some other party to the proceeding might then wish us to invoke our certification jurisdiction).
And should the Licensing Board instead reject the applicants' position that ccmpletion of the antitrust review is not an absolute condition precedent to.the issuance of an operating license for the Davis-Besse facility, we would have the
benefit of that Board's reasoning in making our own deter-mination (1) whether there is sufficient warrant for our stepping into the controversy; and (2) if so, what answer should be given by us to the question.
In short, as a general rule we will not avail ourselves of our Section 2.718(i) certification authority unless and until the Licensing Board has been afforded at least a reasonable opportunity to decide itself the question sought to be certified.
An exception to that rule will be made only in the most compelling circumstances (such as the presence of an emergency situation giving rise to a mani-fest need for an almost inmediate final determination of the question).
Perceiving the existence of no such circum-stances in the present case, we deny the certification request as premature.
It may, of course, be later renewed in the event that the Licensing Board (1) rules against the applicants on the merits of the question raised by their motion now pending before that Board; and (2) then declines to refer that ruling to us under 10 CFR 2.730(f).
In this connection, we assume that the Licensing Board will render its ruling as soon as practicable following its receipt of the responses of the other parties to the applicants' motion.
T Motion to direct certification denied without prejudice to its renewal in accordance with the terms of this order.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD k(kJ 5;'z.
A n<ve w M,argaret E. Du Flo Secretary to the Appeal Board t
J
" ~ ~
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO:CIISSION
)
In the Matter of,
~
)
THE TOLEDO EDISON COMPANY, ET AL.)
Docket No.(s) 50-346A CLEVEIAND ELECTRIC ILLCIINATING )
50-440A COMPANY
)
50-441A
)
(Davis-Besse Nuclear Power
)
St.1 tion, Unic No. 1; Perry
)
Nuclear Power Plant, Units 1&2))
CERTIFICATE OF SER'! ICE I hereby certify that I have this day served the foregoing document (s) upon cach person designated on the official service' list ec= piled by the Of fice of the Secretary of the Co=ission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Co=ission's Rules and Regulations.
Dated at Washing *ca, D C. this b1 day o MI 197
/
I hk0 ',y
r/ ' !{b' bl-- Sp Of fice' of /the Secretary of the Co=i'scien a
g 4
O g
N p.
~
~ ~ ~
~~
,e UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
)
Docket No.(s) 50-346A (Davis'Besse Unit 1)
)
CLEVELAND ELECTRIC ILLUMINATING
)
)
50-441A (Perry Units 1 and 2)
)
TOLEDO ED'ISCN COMPANY, ET AL.
)
50-500A (Davis-Besse Units 2 and 3)
)
50-501A SERVICE LIST Douglas Rigler, Esq., Chair =an Joseph Rutberg, Esq.
Foley, Lardner, Hollabaugh & Jacobs Antitrust Counsel 815 Connecticut Avenue, N. W.
Counsel for NRC Staff U. S. Nucicar Regulatory Commission Washington, D. C.
20006 Washington', D. C.
20535 Ivan W. Smith, Esq.
Office of Antitrust & Indemnity Atomic Safety and Licensing Scard Office of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Co= mission Washington, D.
C.
20555 Washington, D. C.
20535 John M. Frysiak, Esc.
Benjamin H. Vogler, Esq.
Atomic Safety and Licensing Board Roy P. Lessy, Jr., Esq.
U. S. Nuclear Regulatory Co= mission Antitrust Counsel Washington, D. C.
20555 Counsel for NRC Staff U. S. Nuclear Regulatory Co=missien Alan S. Rosenthal, Esq., Chairman Washington, D. C.
20555 Atomic Safety and Licansing Appeal Board Donald H. Hauser, Esq.
U. S. Nuclear Regulatory Commission Victor F. Greenslade, Jr., Esq.
Washington, D. C.
205,55 Cleveland Electric Illuminating Company Mr. Michael C. Farrar P. O. Box 5000 Atomic Safety and Licensing Appeal Cleveland, Chio 44101 Board U. S. Nuclear Regulatory Commission Joseph J. Saunders, Esq., Chief Washington,.D. C.
20555 Public Counsel and T.egislative Section Richarf R. Salzman, Esq.
Antitrust rivision Atomic Safety and Licensing Appeal U. S. Department of Justice Board Washington, D. C.
20530 U. S. Nuclear Regulatory Commission Washington, D. C.
20535 S
e._-
me o
+~6 m
i
50,-346A, -440A, -441A, -500A, -501A p0g2 2 Gerald Charnoff, Esq.
Honorable Edward A. Matto Shaw, Pitt.Mn, Potts, Trowbridge Assistant Attorney General anu Madden Chief, Antitrust Section 910 -17th Street, N. W.
30 East Broad Street, 15th Floor Washington, D. C.
20006 Columbus, Ohio 43215 Lee C. Howley, Esq., Vice President Honorable Deborah P. Highsmith and General Counsel Assistant Attorney General Cleveland Electric Illuminating Antitrust Section Company 30 East Broad Street, 15th Floor P. O. Box 5000 Columbus,0hio 43215 Cleveland, Ohio 44101 Honorable Christopher R. Schraff David C. Hjel= felt, Esq.
Assistant Attorney General Michael 01dak, Esq.
Environmental Law Section 1700 Pennsylvania Avenue, N. W.
351 East Broad Street Washington, D. C.
20006 Columbus, Ohio 43215 Reuben Goldberg, Esq.
Duncan, Brown, Weinberg & Palmer Arnold Fieldman, Esq.
1700 Pennsylvania Avenue, N W.
1700 Pennsylvania Avenue, N. W..
Washington, D. C.
20006 Washington, D. C.
20006 John Lansdale. Jr., Esq.
Steven M. Charno, Esq.
Cox, Langford & Brown Melvin G. Berger, Esq.
21 Dupont Circle. N. W.
Antitrust Division Washington, D. C.
20036 U. S. Department of Justice Washington, D. C.
20530 Leslie Henry, Esq.
W. Snyder, Esq.
Honorable Thomas E. Kauper Fuller, Henry, Hodge & Snyder Assistant Attorney General 300 Madison Avenue Antitrust Division Toledo, Ohio 43604 U. S. Department of Justice Washington, D. C.
20530 Mr. George B. Crosby Director of Utilities John C. Engle, President Piqua, Ohio 45350 AMP-0, Inc.
Municipal Building William M. Lewis, Jr.
20 High Street W. M. Lewis & Associates Hamilton, Ohi, 45012 P. O. Box 1383 Portsmouth, Ohio 45662 Honorable Richard M. Firestone Assistant Attorney General Robert D. Hart, Esq.
Antitrust Section Assistant Law Director 30 East Broad Street, 15th Floor City Hall Colu= bus, Ohio 43215 Cleveland, Ohio 44114 Honorable William J. Brown Anthony G. Aiuvalasit, Jr., Esq.
Attorney General Antitrust Division Stzte of Ohio Department of Justice Columbus, Ohio 43215 P. O. Box 7513 Washington, D. C.
20044
50-346A,, -440A, -441A, -500A, -501A Pcga 3 Susan B. Cyphert, EJg.
Joseph A. Rieser, Jr., Esq.
Antitrust Divisior.
Lee A. Rau, Esq.
Department of Justice, Reed, Smith, Shaw & McClay 727 New Federal Building Madison Building, Suite 404 2140 East Ninth Street Washington, D. C.
20005 Cleveland, Ohio 44199 Terence H. Benbow, Esq.
David M. Olds, Esq.
A. Edweed Grashof, Esq.
Reed, Smith, Shaw and McClay Winthrop, Stimson, Putnam P. O. Box 2009 and Roberts Pittsburgh, Pennsylvania 15230 40_ Wall Street New York, New York 10005 Thomas A.' Kayuha, Esq.
47 North Main Street Ruth G. Bell, Esq.
Akron, Ohio 44308 Janet R. Urban, Esq.
Antitrust Division Perry Public Library Department of Justice 3753 Main Street Washington, D. C.
20530 Perry, Ohio 44081 Director Ida Rupp Public Library 301 Madison Street Port Clinton, Ohio 43452 x
a
= =...
.wg.
eq-m em.
g 9 - - w p-w
--*-=res=~~
i
-