ML19329D371
| ML19329D371 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 05/06/1971 |
| From: | Woodard W NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8003050963 | |
| Download: ML19329D371 (6) | |
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,e UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD:
Algie A. Wells, Chaiman Dr. John H. Buck Dr. Lawrence R. Quarles
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IN THE MATIER OF
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TOLEDO EDISON COMPANY AND
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CLEVELAND ELECIRIC ILLUMINATING COMPANY )
DOCKET NO. 50-346
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(Davis-Besse Nuclear Power Plant)
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NEFORANDUM AND ORDER On April 21, 1971, the Coalition for Safe Nuclear Power, one of the intervenors in this proceeding, filed a motion with the Commission seeking a stay of the construction permit which was issued to the applicants following the Atomic Safety and Licensing Board's initial decision of March 23, 1971. The Commission, by Order dated April 28, 1971, referred this motion to the Appeal Board for appropriate d,eter-mination, reciting the fact that the Appeal Board had been delegated the authority and 'the review function which would otherwise he exercised and performed by the Commission in this case.
The intervenor's motion seeks "an order staying the effective date of the construction permit issued to the applicant [s] until such time as a final judicial determination has been made upon the exceptions filed 1
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i 2-3 herein on behalf of said Intervenor." By undated letter postmarked April 8, 1971, the intervenor filed exceptions to the initial decision and this Board is currently in the process of considering those exceptions. The intervenor, in its motion, assigns as a reason for the stay that "irrep-rable damage will-be caused to the Ihtervenor's rights of appeal by failure to issue a Staying' Order". The applicants and the AEC regulatory staff have filed briefs opposing the motion, asserting, in essence, that l
no showing warranting such a stay has been made by'the intervenor.
While the Appeal Board has the authority to grant a stay of a decision authorizing issuance of a construction permit, ancillary to its appellate jurisdiction, we see no basis for doing so in this case.
'Ihe intervenor has made no showing of good cause and, indeed, has not i
asserted any cause at all for us to grant such a stay, other than the bare assertion that it will be irreparably damaged if a stay is not i
granted during the period of appellate consideration. We do not consider the delay attendant appellate review as constituting, in and of itself, an appropriate reason for granting a stay. This is particularly so since an applicant takes its construction permit subject to the outcome of the 1
appellate review process.
Cf. Power Reactor Development Co. v. Inter-national Union of Electrical, Radio and Machine Workers. AFL-CIO, 367 U. S.
396, 414-15 (1961).
Furthermore, Consnission Rules specifically provide that an initial decision authorizing the issuance of a construction permit for a nuclear power reactor shall be effective inanediately upon issuance "unless the e
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presiding officer finds that good cause has been shown by a party why the initial decision should not become immediately effective".
10 CFR 5 2.764(a). Such a finding, or the refusal to make such a finding, is subject to review and further administrative decision upon exceptions filed by any party. The intervenor, despite this opportunity afforded by the Rules to seek a Licensing Board stay of construction permit issuance, made no effort to do so.
The intervenor's failure - for which no explana-tion is offered - to resort to the administrative recourse available to it a
to obtain such a stay is itself a proper ground for denying the present request.
In view of the foregoing, the intervenor's mocion must be denied.
It is so ORDERED.
By the Atomic Safety and Licensing Appeal Board
/k< <
! hdJI" William L. Woodar!
Assistant Executive Secretary Dated:
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GIITED STATES OF AMERICA y
ATOMIC E!!ERGY COMMIGGIon i
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In the Matter of
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Docket No. 50-3 46
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gg 7j, TOLEDO EDISON COMPANY, ET AL.
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(l; avis-Besse Nuclear Power
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Utation Unit 1)
CERTIFICATE OF SERVICE f
O icaued by ti~
I hereby ecrtify that copies of the IS10RANDQ4 ANI been cerved on Appeal Board on May 6, 1971 in the captioned matter have first elaas or ni4 l
the following by deposit in the United States mai,
mail, this 6th day of May 1971:
Leslie Henry, Esq.
Walter T. Gkallerup, Jr., Esq.
Fuller, Cency, Henry and Hodge Chairman, Atomic Safety and 800 Owens-Illinois Building Licensing Board h05 Mcdicon Avenue Toledo, Ohio 43 0h 6
Cox, Langford & Brown 1521 New Hampshire Avenue, N. W.
6 Uilson W. Snyder, Esq.
Washington, D. C. 2003 Fuller, Sency, Henry & Hodce Dr. Walter H. Jordan 800 Owens-Illinois Buildinn Oak Ridge National Laboratory 405 Madison Avenue Toledo, Ohio 43 0h 6
P. O. Box x Oak Ridge, Tennessee 37830 Donald H. Hauser, Esq.
Dr. Charles E. Winters The Cleveland Electric 8800 Fernwood Road Illuminating Company h
Bethesda, Maryland 2003 P. O. Lox 5000 Cleveland, Ohio h4101 1
Dr. John C. Geyer, Chairman Department of Geography and Mr. Glenn J. Sampson, Vice Environmental Engineering Fresident - Power The Johns Hopkins University The Toledo Edison Company Baltimore, Maryland 21218 420 Madison Avenue 6
Toledo, Ohio 43 01 Thomas F. Engelhardt, Esq.
Paul W. Wallig, Esq.
Honorable Harry R. Johnson 3
Regulatory Gtaff Counsel President, Board of County U. S. Atomic Energy Commission Commissioners Washington, D. C. 20545 Ottava County Courthouse 4
Port Clinton, Ohio 43 52 Gerald Charnoff, Esq.
Shaw, Pittman, Potts, Trowbridge Mr. Roger B. Williams and Madden Atomic Energy Coordinator 91017th Street, N. W.
State of Ohio Development Washington, D. C. 20006 Department l
65 South Front Street Columbus, Ohio 43215
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50-346 pn e ^
Mrs. Evelyn Stebbins, Chairman Miss Vicki Evann Coalition for Safe nuclear Power L.I.F.E.
705 E3mvood Road Box 15, University Hall Rocky River, Ohio hhll6 Fowling Green State Universi.t,y Povling Green, Ohio 4 403 3
Russell Z. Baron, Esq.
Brannon, Ticktin, Baron Jerome 3. Kalur, Esq.
& Mancini Jamison, Ulrich, Eurkhalter 930 Keith Building
& Hesser Cleveland, Ohio 44115 1425 National City Bank Building Cleveland, Ohio h4114 Mr. Glenn H. Lau Rt. 1, Box 126 Beatrice K. Bleicher, Esq.
Oak Harbor, Ohio 43449 Coburn, Smith, Rohrbacher & Gibson 7th Floor Toledo Trust Building James L. Knight, Esq.
Toledo, Ohio 43604 633 National Bank Building Toledo, Ohio 4 604 3
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.r y Office of the Secretary of the Co, iscion ec: Mr. Skallerup Mr. Engelhardt Mr. Yore H. Steele H. Smith
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