ML19326A869
| ML19326A869 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 04/26/1971 |
| From: | Charnoff G SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8003050770 | |
| Download: ML19326A869 (3) | |
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UNITED STATES OF AMERICA' i
ATOMIC ENERGY COMMISSION In theLMatter of THE TOLEDO EDISON COMPANY and THE CLEVELAND ELECTRIC ILLUMINATING Docket No. 50-346 COMPANY W-j i Yl.
Davis-Eesse ' Nuclear Power Station APPLICAUTS ' REPLY TO MOTION FOR ISSUANCE OF STAYING-ORDER BY COALITION FOR SAFE NUCLEAR POWER 1.
By letter dated April 21, 1971, Intervenor Coalition for Safe Nuclear Power (Coalition) filed a Motion for Issuance of Staying Order recuesting a stay of the effective date of the construction permit issued to the Applicants in the captioned proceeding.
Without explana-tion or' basis, Coalition asserts "that irreparable damage will be caused.to the Intervenor's rights of appeal by failure to issue a Staying Order."
2.. Section 2.764(a) of the Commission's Rules of Practice _provides:
'"An initial decision directing the_ issuance for amendnent of a construction permit, a' con-struction authorization, or an operating license _ shall be effective immediately upon issuance unless the presiding officer finds that good cause has been shown by a party i
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.why the initial decision should not become immediately effective,. subject to the review thereof and further decision by the Commission upon exceptions filed by
-any party pursuant to 52.762 or upon its own motion."
At no time-during the course of the public hearing or in Coalition's Proposed Findings of Fact and Conclusions of Law did the - Coalition object to immediate effectiveness J
.of the' initial: decision; nor did it offer to show any good cause why the. initial decision should not become immediately effective.
3 In passing on motions to stay an administra-tive order pending judicial review, the courts require such movants to demonstrate:
a) the likelihood that the movant will pre-vail on its petition for review, b) that irreparable damage will be suffered by the movant if the stay is denied, and c) that the public interest would be served by a. stay order.
Hamlin Testing Labora-tories, Inc. v. United States Atomic Energy Commission, 337 F. 2d 221,.Cetober o, 1954.
L 4.
Applicants _ note that Coalition's motion mis-
'takenly cites 5 U.S.C. 57C5'which applies to stays of final
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agency actions pending judicial review.
5 Coalition's motion should be denied for failure to timely offer any good cause why the initial decision should not become immediately effective and for failure to make any demonstration of the factors set forth in paragraph 3 above.
Respectfully submitted, SHAW, PITTMAN, POTTS, TROWBRIDGE & MADDEN f
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%.mc gy Gerald Charnoff
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Counsel for The Toledo Edison Company Dated:
April 26, 1971